Dear Judge Ruth:
When I applied to college, I was required to submit a passport sized photograph. Now, as an employer, I use an application form which requests a photograph. I also believe that involvement in social or civic organizations is a wonderful thing and demonstrates commitment to the community and a strong work ethic so my form inquires about membership and leadership roles. My questionnaire also asks candidates to specify whether they are male or female. When girls are named Sydney or Jordan, I find it embarrassing to ask for Mr. X only to discover that the individual is female. However, I read somewhere that these requirements could get me into trouble. What do you think? LC
Dear LC: Thanks for the question. You are certainly well motivated and acting in good faith. However, both of these elements can lead to an inference of discrimination. Requesting a photograph is the equivalent of asking about an applicant’s racial or ethnic origin. An interview will disclose whether the applicant is a walking example of body art or has enough piercings to resemble Swiss cheese! Do not ask for information about social organizations or clubs to which the candidate belongs since those memberships could expose racial and ethnic characteristics. Instead, the question can be posed in a slightly different way. Ask whether the candidate has assumed a leadership role in an organization and the elements of the role without requiring him or her to name the association. In terms of requesting gender identification or even whether the candidate wishes to be referred to as Mr., Miss, Ms. or Mrs., you are exposing yourself to a Title VII claim. When in doubt, leave it out! Instruct your staff to leave messages for “Sydney Smith” or “Jordan Jones” without the title and address correspondence to the candidate by name only.
The application and interview screening process can be a minefield if it isn’t approached carefully. Even questions that are seemingly neutral can reveal an applicant’s protected class or be considered to screen out certain individuals improperly and expose you to a discrimination claim. Remember, all questions should focus on the candidate’s ability to perform the job. Ask about past experience, relevant education, prior employment and job duties. Don’t ignore staff training. Everyone involved in the hiring process should be aware of the legal consequences of asking improper questions. This will reduce your legal exposure while enhancing the professionalism of your screening process.