Smart Interviewing Can Prevent A Lawsuit Later: Concentrate on Job Candidate's Skills and Abilities

July 28, 2005
Frost Brown Todd LLC

Have you hired someone that turned out to be a total disappointment?  Have you ever found that your job descriptions do not match what a particular employee actually does?  Do you worry about what questions people in your organization will ask at an interview?

The foundation for any successful healthcare organization is good people.  You simply cannot provide top-shelf medical care without proper personnel.  So re-examining your hiring process may be essential to improving your organization.

Before you hire someone, you need to think through the qualities and abilities you need for a particular position.   Generally, job descriptions are a good idea – but only if the job description is up-to-date, accurate, and followed in practice.  For instance, you are likely to get your organization into legal difficulties if your job description says that all applicants “must” have a college degree, and then you hire someone who left college after a year. 

If your job description does not match the qualifications actually required, then it is time to change your job description.  Similarly, if your job description does not match what the employee actually does on a day-to-day basis, then the job description should be altered.  Too often, employers write their job descriptions and file them away in drawers, only to have them come back and haunt that employer years later in litigation.  The task of keeping job descriptions is not a one-time static event; they must change with the evolving realities of each job.  Finally, it is a good idea to add a phrase like “and other duties as needed or assigned” to every job description.

After you have thought through the qualities and abilities you need for a particular position, you next need to figure out if an applicant possesses those qualities and abilities.  Thinking through this process will not only eliminate most legal difficulties, it should result in a better work force and a better organization.

When you interview an applicant, do not ask questions about race, sex, national origin, marital status, age or religion.  Thus, questions like “Are you able to travel as a single mother?” are improper, but “Are you able to travel?” is appropriate if asked to each applicant. 

The bottom line is marital status, race, sex, national origin, age (40 and above) and religion have nothing to do with actual job performance, so don’t ask about them during any part of the employee relationship.  You need to tell everyone in your organization that asking these questions of applicants is absolutely taboo.  This means asking these questions directly (“Where are you from originally?”) or more indirectly (“What kind of energy level do you have at your age?”).  Remember, it’s an interview, not a conversation at a cocktail party.

The law also protects the disabled from discrimination.  Congress estimated that more than 45 million people are disabled in the eyes of the law.  The courts, however, have disagreed as to what physical or mental conditions constitute a disability.  Do not ask questions about an applicant’s medical condition.  In addition, don’t ask whether a prospective employee has ever filed a workers’ compensation claim.  Instead, ask about the applicant’s ability to perform the various functions of the job.  For instance, the question should be, “Can you move these crates?” not “Do you have a back problem?”

If you focus on the skills and abilities needed for a particular job and then search for individuals with those skills and abilities, you should be okay.  If an applicant has a physical or mental problem and you can make a reasonable change to allow the applicant to perform the job, you should make the change.

Do not make any promises to an applicant about employment.  Period.  Just as an employee can quit a job for any reason, so too can an employer fire an employee for any reason, with some very narrow exceptions, such as discrimination.  This is the law unless the employer makes a promise about employment.

Therefore, do not promise long-term employment; do not promise that an employee will not be fired without cause; do not even promise to be fair.  Remember, the deal is that either party can end the employment relationship at any time – unless you start making promises.

Obviously, for some positions in healthcare, certain medical tests (e.g., tuberculosis) will need to be conducted.  These tests should be made after the offer has been made, but the offer should be conditioned upon passing these tests.  The same is true for drug testing.  All information regarding these medical and drug tests should be kept confidential and apart from personnel files.

If you are considering drug-testing your employees, you may wish to implement such a program during the hiring process.  The safest course is to condition the offer of employment upon successful passage of a drug test.

If you are turning down an applicant for a job, you have no legal duty to provide an explanation to the applicant.  Still, common sense and common courtesy dictate that some explanation should be given.  You should tell the truth without too much detail and without antagonizing the already-disappointed applicant.

In sum, if you focus on the skills and abilities you need for a particular position, then you have gone a long way toward complying with most of the laws.

© 2005, by David A. Skidmore, Jr. and Katherine C. Morgan

David Skidmore and Katherine Morgan are Partners practicing in labor and employment law in the Cincinnati office of Frost Brown Todd LLC.  David Skidmore can be reached at (513) 651-6185 and  Katherine Morgan can be reached at (513) 651-6838 and