HR Solutions: Sound interview approach requires more than questions

Lynne Haggerman is president/owner of Haggerman & Associates, an employment, management training, human resources consulting and outplacement firm.

Last week, this column addressed lawsuits lost due to failure to comply with the three primary resource laws the Civil Rights Act of 1964, Title VII; the Age Discrimination in Employment Act of 1967 and the Americans with Disabilities Act of 1990. This week's installment will offer further suggestions for adhering to the laws and conclude with the role of employment practices liability insurance.

A thorough approach

Since it is illegal to discuss medical information during an interview, the human resource person should provide a job description to each person prior to the interview. At the bottom of the job description utilize language such as the following: "I have read and understand this job description. I can/cannot perform the essential functions with or without reasonable accommodation."

Obtain the signature of the applicant on the job description. This enables an individual with a disability to decide if he is able to perform the job and avoids the possibility of the interviewer asking illegal questions.

Write all questions asked during the interview. Confirm every individual interviewed for the same position or type of position is asked similar questions. Document responses to questions. Develop a standardized numerical scale and assign a rating to each criteria to reflect the degree that each candidate does or does not meet that specific criteria. Write the nondiscriminatory reason for rejecting each interviewee not hired.

Conditional job offers may be made pending physicals by physicians if the examinations will be required of each person offered the same job, such as requiring physicals for all warehouse workers.

Provide the physician with a copy of the job description. If the physician determines the individual is unqualified, his rationale must be job-related and consistent with business necessity. The company must then prove a reasonable accommodation does not exist or that the accommodation imposes an undue hardship. Be sure to maintain documentation justifying such a stance.

Medical examinations or inquiries after beginning work will be allowed if job related, consistent with business necessity, required by other federal laws or if job performance or safety problems arise. Voluntary physicals and medical questions through an employee health program or policy to ensure current fitness to perform the job will also be legal.

Disciplinary methods

Apply consistent disciplinary practices. Utilize progressive discipline, which requires at least three written warnings prior to termination. When behavior is severe, the worker may receive fewer chances or be immediately terminated. Document the facts regarding the inappropriate behavior, standards expected and consequences of noncompliance. Attach previous written warnings and any relevant, written polices and procedures. Use a company witness so in a trial it is not the word of the manager against the word of the staff member.

Religious needs must be reasonably accommodated unless doing so would undermine a legitimate job requirement or impose undue hardship.

Blanket policies requiring English-only rules will be illegal unless the company is able to prove the program is a business necessity. If that is the case, employees must be informed by a written policy stating when English is required and the consequences of violations.

Require regular management training of current, new and promoted supervisors. Provide information concerning the laws, company human resource policies and procedures, and required paperwork and documentation. In numerous court cases, proof of training has reflected good faith efforts by the company to prevent discrimination, retaliation and harassment.

Liability insurance

A company in business without these standards and practices has substantial and unnecessary liability exposure. The courts, the Department of Labor and the Equal Employment Opportunity Commission expect companies to develop, implement and administer these programs.

If the business chooses not to change, the only other alternative is to begin saving for the inevitable lawsuit or obtain employment practices liability insurance. However, providers typically require the above mentioned programs prior to authorizing insurance coverage.

Don't remain uneducated or in denial regarding the top three federal laws. Conduct a human resource audit to determine liability, and begin devising programs to ensure legal compliance.