That’s like saying a tax attorney is automatically competent to represent a client in a domestic relations matter just because he or she practices law. But, if you’re a lawyer needing to hire new staff, whether that means an associate, legal assistant or law clerk, it’s important to know how to find the best candidate for the job without asking any questions considered discriminatory.

While federal law plays a major role in defining discriminatory behavior, states are also permitted to enact their own employment-related laws. Then, of course, case law also interprets those statutes, adding further murk to an already complex topic.

Where to Find Information

Being a lawyer does not necessarily mean a person knows where to find guidance about how to avoid a discrimination lawsuit during the hiring process. Fortunately, a wealth of useful information can be found on the Internet. Documents containing pertinent guidelines include:

• Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin
• The Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination
• The Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older
• Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments
• Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government
• Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee
• The Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination

The U.S. Equal Employment Opportunity Commission (EEOC) enforces all of these laws. The EEOC also provides oversight and coordination of all federal equal employment opportunity regulations, practices, and policies.

Free Legal Advice

Scott Young, an employment law attorney licensed in Ohio and Washington, DC advises attorneys involved in the hiring process to “avoid pre-employment inquiries that are not job-related. Don’t ask questions about age, gender, religion or national origin.”

These topics are considered a person’s “key protected characteristics,” he says. Young, a partner with the Cincinnati office of Thompson Hine, also suggests shying away from inquiries regarding a job applicant’s criminal history. However, if the hiring attorney feels compelled to ask questions about the candidate’s arrest and conviction record, they should be certain their inquiries “relate to the individual’s ability to do the job,” he says.

Thinking about asking if the candidate was ever a member of a union? Don’t, says Young. While it might be useful to know if the job applicant has a history of filing employment discrimination or unemployment claims against his or her employers, Young says asking those questions is a bad idea.

Julie M. Young (no relation to Scott Young), an employment law attorney with the Columbus law firm of Caroline Worley Law LLC, has other suggestions for lawyers seeking to avoid discrimination lawsuits stemming from the interview process. In these days of Bruce Jenner revealing he feels more female than male, it’s important to know “there is a difference between gender identity and sex. You can’t ask if a person is a male or female unless you can show a particular race, religion or gender is a bona fide job qualification, which is nearly impossible to show except maybe for religious institutions,” she says.

Another question to avoid relates to the job candidate’s American citizenship. Don’t ask it unless being an American citizen is a bona fide job qualification, although there aren’t too many jobs that necessitate American citizenship. However, notes Young, “you can ask if the candidate is authorized to work in the United States.”

Higher Standards for Lawyers?

Are lawyers held to a higher standard on employment law matters during the hiring process than other would-be bosses? According to Mark S. Kittaka, an employment lawyer at the Fort Wayne, Indiana office of Barnes & Thornburg LLC, it wouldn’t be legal to hold a non-employment attorney to a higher standard on hiring matters than the average employer. However, that’s not to say that’s what always happens.

“As a practical matter, a jury may believe that lawyers should generally know the law (regardless of his/her specialty) and therefore may infer that these types of objectionable questions are greater evidence of discriminatory intent,” Kittaka says.

Julie Young agrees with that premise. “I think…lawyers would have greater accountability than other professionals to not step over the line,” she says.

Oral vs. Written

Interview questions can be discriminatory in nature regardless of whether they are posed in writing or orally, says Julie Young. Asking written interview questions is favored for at least one reason: it offers a written record of what was asked. If a face-to-face interview is conducted, whether in person, over the phone or the Internet, Scott Young advises the hiring attorney to have at least one other person in on the discussion.

“It’s a recommended practice for the employer to have interviews conducted by more than one individual so there’s a witness of what’s being asked of the candidate,” he says. While that’s not always practicable, it is something to strive for, he says. -

Tami Kamin Meyer is an Ohio attorney and writer.