Hiring and the Law – What About Pre-Screening Questions?

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question: We’re looking to hire a PR person for our dermatology center where we also provide clinical nutrition and other skin-enhancing services.  The ideal candidate needs healthy looking skin and needs to be an ambassador for our office with a healthy, fit appearance.  During the phone pre-screening can I ask “Do you have a fit, healthy appearance?” Or “Do you look fit and healthy enough to represent our office?”  I want to avoid so many in-person interviews with people who are not a good fit.

Answer: Those questions are probably not good ideas.  Some states, but not all, prohibit discrimination on the basis of the employee’s appearance, so you need to know the local restrictions.  However, all states and federal law prohibit discrimination on the basis of a disability.  These could potentially include conditions that might be contrary to what it appears your office would be seeking.  Thus, you need to make sure your hiring requirements are all based on the requirements for the job.  Even people with disabilities must satisfy the job requirements—provided those requirements are actually necessary to do the job.

Nevertheless, an appearance being sought could possibly be what is called a “BFOQ” (Bona Fide Occupational Qualification).  Employers can potentially argue that appearance is a BFOQ for individuals in PR or Marketing roles who personally sell a product or service, where the product or service is directly related to the person’s appearance.  But, keep in mind that customer preference does not trump the requirements of the discrimination laws.

I suggest identifying the specific requirements you are seeking, such as outgoing personality, good communication skills, ambassador for our office, and putting that information in the want ad.

In this case, by way of example, you could say something like:  “Our dermatology center also provides clinical nutrition and other skin-enhancing services.  The ideal candidate will be an ambassador for our office, embodying the results we aim to achieve for our clients/patients.  It is our goal to help our clients/patients achieve healthy hair, nails and skin [etc.].  A candidate with an outgoing, radiant personality and good communication skills will help communicate our message.”

It is also advisable for an employer to put in the want ad that it is an equal opportunity employer.  That can help forestall discrimination claims asserting that the company is seeking cute, young, white women only.  From what you described, “older” people who have the image you are seeking, or people of color with good skin, could fit the bill for the job, provided they have the other requirements. Keep in mind, however, that, as in this example, a person with bad skin may be able to cover it with make up so that they still appear satisfactorily.

A person doing phone screening might want to read the ad and/or expand on that information in the introduction to the pre-screening phone call when explaining what the company is looking for—rather than asking questions outright about “do you have good skin?”  A person who does not meet those qualifications may get the hint, but, that is not guaranteed.  The company may need to bring people in and make determinations based on in-person interviews.  As with other requirements, however, if a candidate at the start of an interview is not what the company is looking for (doesn’t have the required background, typing skills, education, etc.), you are not required to give that person a whole interview as you might do with someone who is closer to ideal.

In all instances, employers should not request a photograph as that request prior to making a job offer is considered to be discriminatory.  It is presumed that an employer asks to see a photo to identify the person’s gender/race/age etc. and may screen out on one of those impermissible reasons.

Nothing guarantees that applicants won’t bring failure to hire claims against companies that do not hire them, however these are some steps that can help better protect employers that are hiring.

*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.