[Digest, Spring, 2002]

Workplace discrimination has become a hot topic in the news and the focus of high profiles lawsuits in which damages can run into the million-dollar range. As such cases become more frequent, it is not surprising that more and more ophthalmic practices are adding liability coverage to their list of business insurance needs. It makes good business sense for employers to keep their workplace discrimination-free, not only to help prevent lawsuits but also to improve employee morale.

Discrimination in the private sector, while not directly constrained by the U.S. Constitution, has become subject to a growing body of federal and state statutes. Federal employment discrimination law seek to prevent discrimination by employers based on race, sex, religion, nation origin, physical disability, and age. Discriminatory practices that are covered by these federal laws include bias in hiring, promotion, job assignment, termination, compensation, and various types of harassment.

State statutes actually may provide more extensive protection from employment discrimination than federal laws. Some state laws extend similar protection as provided by federal statutes to employers who not covered by those statutes. For example, some employers my not be covered by the American with Disabilities Act (ADA) because they employ less than 15 employees. However, a state may prohibit discrimination and mandate reasonable accommodations for the disabled regardless of the number of employees. Other statutes provide protection to groups, not covered by the federal acts. For instance, there is a growing body of law preventing discrimination based on sexual orientation.

The Job Interview
The hiring process is one of the most treacherous areas of exposure to discrimination claims. Employers must abide by all anti-discrimination laws during each phase of the hiring process, from placing a help wanted ad to conducting a job interview to selecting the new employee. The spontaneous and unpredictable nature of the job interview makes it an event ripe with hidden traps form the unwary employer. Things said with the most innocent intent can be misconstrued as prejudicial and later used by an unhappy applicant as fodder for a discrimination lawsuit.

The guiding principle behind any question to an applicant is, Can the employer demonstrate a job-related necessity for asking this question? Do not ask any characteristic of the applicant that the law prohibits you from considering in making your decision.

So what can you ask? Before the interview, create two lists: one of the tasks that the applicant will have to perform as part of the job and the other of all the skills and experience that you require for the position. This will help you focus on what you really need to know, which is whether that applicant can do the job.

During the interview, you can ask whether the applicant will be able to perform each of the essential tasks and if the applicant possesses the requisite sills and experience. This will ensure that you ask all the applicants essentially the same questions and help you avoid the appearance of treating some applicants differently from others. Although you are prohibited from asking if they have children or physical disabilities, you may ask whether there are any physical or social issues that may restrict an applicant from doing the job as described. One way to conclude an interview and possibly solicit further information about the applicant is to ask whether there is anything the applicant wants you to know that has not been discussed.

All employers can benefit from understanding the basics of employment law, from hiring to firing to avoiding workplace discrimination. For solo practitioners, knowing what constitutes legal and illegal treatment of employees can reduce the need for lawyers. Large practices can benefit from this knowledge too, as informed human resources department will be better equipped to avoid legal trouble and keep employee morale high.