Publications
What About Job Applicants?
Job applicants are covered by religious discrimination laws – employers are not permitted to allow a job applicant’s need for religious accommodation to influence hiring decisions.
This raises thorny issues for the employment interview. For instance, an interviewer may believe that an applicant is Jewish. Knowing that Saturday work is required, and knowing that Saturday is the Jewish Sabbath, the interviewer may ask whether the applicant will be available to work on Saturdays. Or an interviewer may ask a Sikh wearing a turban if he intends to dress in the same fashion during the work day, anticipating that management may have an objection.
Big problem… if applicants who are questioned in this fashion are not hired, they will contend that the hiring decision was based on religious discrimination – why would the interviewer have asked these questions if they weren’t important to the hiring process?
The EEOC (whose views do not bind courts, but courts find them influential) maintains a position on this subject that many employers will find extreme, cumbersome, and in many cases very difficult to apply in view of the typical give and take that unfolds during an employment interview.
For instance, in respect to scheduling issues, the EEOC posits that questions regarding an employee’s availability for work may have an exclusionary effect on persons with certain religious practices, and should therefore not be posed. Instead, the employer should state the required work schedule and “after making it clear to the applicant that he or she is not required to indicate the need for any absences for religious practices during the scheduled work hours, ask the applicant whether he or she is otherwise available to work those hours.” Only after the employer offers the job to the applicant, but before the applicant is hired, may the employer inquire into the need for a religious accommodation and determine whether an accommodation is possible. Presumably, the same is true in matters pertaining to dress and any other workplace requirement that may impinge on religious issues – don’t ask until the job has been offered (i.e., do not make the issue a precondition for hiring), and only then discuss the need for and availability of religious accommodations.
Counsel Consulting Group LLC helps companies throughout the United States avoid employment and HR-related claims and liabilities. CCG assesses existing policies, procedures and problem areas; it provides customized liability-avoidance training to managers and executives; and it designs and implements business techniques that reduce employment liability risks on a long term basis. CCG also offers specialized workshops for managers and HR executives, customized consulting in focused employment-related areas, and CD-ROM and web-based training alternatives. For more information, contact us at info@powelltrachtman.com and visit our website at www.counselconsulting.com.
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
