THE APPLICATION AND INTERVIEW PROCESS

A credit union’s compliance with employment laws begins with the application/interview process. Employment laws impact all phases of the employment relationship; however, credit unions are more limited in their inquiries in employment applications and interviews.

A credit union cannot directly or indirectly ask in an application or during an interview about an applicant's medical history, treatments for drug or alcohol abuse, workers compensation history, sex, date of birth, age, marital status, sexual preference, race, national origin or religion. The rationale behind this rule is credit unions may not use this information to exclude an applicant from employment.

Personal information such as, sex, date of birth, marital status and medical history can be obtained only after an offer of employment is made and then only for benefit purposes. Medical history information should be maintained in a file separate from the personnel file.

A credit union must limit its inquiry to job-related questions and refrain from peripheral topics. The following is a list of topics a credit union can and cannot ask during an interview.

Questions an Employer Cannot and Can Ask

Sex-Related Questions a Credit Union Should Not Ask:

Generally, a credit union does not intend to ask discriminatory questions; however, improperly phrased questions can suggest discriminatory intent. Consequently, when conducting an interview, a credit union should ask job-related questions and avoid any subjective questions like the following:

• Are you married?
   
• Do you plan to get married/have children?
   
• Are you likely to quit if you get married/have children?
   
• What type of birth control do you use?
   
• What was your maiden name?
   
• Does your husband expect you to be home to cook dinner?
   
• Will your spouse object if you entertain clients on weekends or in the evening?
   
• How many children do you have?
   
• What will you do if your children get sick?

As a general rule, these questions are directed against women and are discriminatory in nature.

Sex-Related Questions a Credit Union May Ask:

The following inquiries are appropriately phrased work-related questions:

• What was your absentee and attendance record with your prior employer?
   
• Are there any reasons you will not be able to be at work on a regular basis?
   
• Are you willing to relocate?
   
• Are there any reasons you cannot relocate?
   
• Are you willing to entertain clients on weekends and during the evening?
   
• We are looking for employees who will make a commitment to this company are there any reasons why you might not stay with this company? and/or
   
• What are your career objectives?

When these questions are asked, they MUST be asked to men and women. If these questions are asked only to females, for example, they can be construed as discriminatory statements because they are directed towards one sex.

Physical or Mental Impairment-Related Inquiries

The ADA prohibits questions which indirectly reveal whether an individual has a physical or mental impairment. This includes questions relating to hospitalizations, psychiatric treatment, illnesses or health-related problems, impairments, treatment for drug addiction or alcoholism, use of prescription drugs and/or prior workers compensation claims. A credit union cannot ask about the nature or severity of a disability. A credit union may inquire about whether an applicant physically is able to perform the essentials of the position, with or without accommodations.

Questions a Credit Union May Not Ask Regarding Physical/Mental Impairments:

A credit union cannot ask the following questions:

• Whether the applicant has a history of filing workers compensation;
   
• If the applicant drinks alcohol and how much;
   
• How long has the applicant been disabled;
   
• What caused the impairment;
   
• The extent of an individual's absentee record due to the impairment;
   
• Whether an applicant is currently taking any medication;
   
• Whether the applicant has a history of prior accidents or illnesses;
   
• Whether the applicant needs special care because of the disability;
   
• The nature or severity of a disability;
   
• The condition causing the disability;
   
• Whether the applicant has a disability which would interfere with his/her ability to perform the job; and/or
   
• Whether the individual needs treatment or special leave because of the disability.

Questions a Credit Union May Ask Regarding Physical/Mental Impairments:

A credit union may ask the following questions, provided they are asked of all applicants:

• Can you perform the functions of the job for which you are applying, with or without reasonable accommodations?
   
• Can you meet the attendance requirements of this job?
   
• The job requires you to transport 20 lb. boxes from a loading dock, down two flights of stairs, to a processing machine. Can you perform this function with or without reasonable accommodations?
   
• How many Mondays/Fridays were you absent last year other than for approved time off? and/or
   
• A credit union cannot conduct medical examinations prior to making an employment offer. Once an applicant is offered a job, a credit union can require an individual to take an entrance medical exam and condition further employment on the results of the exam if all employees are required to take the examination.

Physical Appearance and Mannerisms:

Generally, questions relating to an applicant's appearance indirectly relate to an individual's sex, national origin, race or age. A credit union should refrain from making the following inquiries:

• Whether an employee has facial hair;
   
• An employee's/applicant's weight;
   
• Whether an employee/applicant has a foreign accent.

Age:

Typically, questions relating to age are obvious and are absolutely prohibited in an employment application or during an interview. Consequently, a credit union is prohibited from asking the following questions:

• An employee/applicant's age/birth date; and
   
• An employee's date of high school graduation.

NOTE: A credit union can ask if an applicant is eighteen years of age.

Religion:

Credit Unions should not inquire about an applicant's religious affiliation with churches and/or social organizations, unless job-related.

Citizenship/National Origin:

Generally, any questions relating to an individual's citizenship or national origin are prohibited. However, it is permissible to ask an applicant if he or she is a U.S. citizen and if not, to obtain appropriate information concerning an individual's lawful status to work.

Consequently, a credit union should avoid asking the following questions:

• An employee's maiden name or mother's maiden name;
   
• An employee's husband's name;
   
• Citizenship of an employee/applicant;
   
• An employee/applicant's place of birth; and
   
• Whether an applicant is proficient in speaking, writing or reading English, unless this qualification is job-related.

Arrests and Convictions:

Generally, this line of inquiry is objectionable because it impacts minorities and earmarks individuals who are viewed as "trouble makers." Questions relating to arrests and convictions are permitted when job-related or if a bond is necessary for the position. Consequently, a credit union should avoid asking any of the following questions:

• Any questions relating to a history of arrests;
   
• Whether an individual received a less than honorable military discharge.

Financial Status - Reliability:

Generally, this line of questioning is objectionable because questions concerning financial status tend to affect minorities and are unrelated to the job. Consequently, a credit union should refrain from asking the following questions:

• Whether an applicant rents or owns a home;
   
• The length of residency at a home or apartment;
   
• Whether the employee/applicant owns a car and the form of work transportation, unless job-related;
   
• Any loans, wage assignments or garnishments previously assessed against an employee or applicant;
   
• Whether an applicant filed bankruptcy; and
  
• List of an applicant's credit cards, insurance claims and judgments rendered against him or her.

Recommendations for Compliance with Employment Laws During the Hiring Phase

To comply with employment laws and avoid employment discrimination claims relating to the hiring process, a credit union should establish uniform, job-related, objective selection criteria and consider the following strategies:

• Conduct training sessions to educate supervisors on how to interview and avoid asking prohibited questions;
   
• Define the job to be filled and the selection process;
   
• Define job-related selection criteria objectively;
   
• Uniformly apply selection criteria;
   
• Include more than one decision-maker during the process; and
   
• Inform candidates promptly of the disposition of their applications.

A credit union should also practice proper record keeping.

• Retain all applications and correspondence to applicants for three years;
   
• Document all interview dates and communications to applicant; and
   
• Document reasons for rejection and selection decisions.