Illegal Question?

Paul in Cannon Beach · April 2003

Our application includes three reference forms. One of the questions on the reference forms asks:

"Have you known the applicant to have been dismissed from a job? Y/N If yes, please explain."

Recently, one reference was returned with the following comment:

"FYI - if you use this answer and don't hire based on 2nd hand information the applicant can bring an employment related wrongful discrimination suit against you. Call your attorney. This is an illegal question."

Before I make a reply to this person, I thought I would consult with my forum friends. I personally don't believe this is an illegal question. Also, we wouldn't base an employment decision on any ONE bit of information provided by a reference without further investigation.

Thanks for your help.

Paul

HRsage · April 2003

I don't believe this is an illegal question either. I think it's illegal for the respondent to answer the question with false information however.

Leslie · April 2003

Before we contact references, previous jobs, etc., the employee signs a release acknowledging the information we will be seeking. Ours reads:

Was this applicant ever disciplined or was this applicant discharged for:
Possessing, selling, or being under the influence of illegal drugs? ( ) Yes ( ) No
Possessing, or being under the influence of alcohol at work? ( ) Yes ( ) No
Neglect of duty (leaving work area, horseplay, non-productive work)? ( ) Yes ( ) No
Insubordination? ( ) Yes ( ) No
Theft or unauthorized removal of company property? ( ) Yes ( ) No
Fighting or threatening others? ( ) Yes ( ) No
Violation of safety rules? ( ) Yes ( ) No
Failing to notify company when absent? ( ) Yes ( ) No
If the answer to any of these questions is yes, please explain:

It's been approved by Legal, so guess it is - and so should yours be.

Rockie · April 2003

Technically, this is not an illegal question, especially if you get a properly signed release before you check references. Where companies have gotten into trouble is say a prospective employer calls "Company X" and talks with a supervisor (instead of HR)and the supervisor states "Joe Blow is a psycho...I wouldn't have him if he was the last person on earth." These type of statements have ended up costing companies mega bucks. That's one reason there's such a backlash on giving out information on former employees.

In any event...I have found that most former employers will only give the standard information about former employees which is the dates of employment with the company and the position held. Most will not even state if they are eligible for rehire.

Paul in Cannon Beach · April 2003

Thanks! I sure appreciate all of you and this forum.

Paul

Don D · April 2003

I don't know a single HR person in the world who would answer Leslie's questionnaire. Does anyone else? x:o No Paul, the question is not illegal. The respondent simply had his shorts twisted that day.

Dasher · April 2003

Hey, Don's back. Missed ya.

No, I would not respond to the questions on Leslie's reference request. In fact, those questions would be my clue to respond with ONLY basic info.

However, if a company needs information to make a hiring decision, and I am called, we all know there are ways to respond wherein a savy HR person will know all they need to know (but you didn't hear it from me).

Balloonman · April 2003

My personal favorite is: Is the person eligible for re-hire? That says a lot.
My $0.02 worth.
DJ The Balloonman

arodriguez · April 2003

>My personal favorite is: Is the person eligible for re-hire? That
>says a lot.
>My $0.02 worth.
>DJ The Balloonman

"Is the person eligible for rehire" is one of my favorites, too. I usually "gage" the response time between my question and the yes or no answer and then just sit quietly and wait for them to continue to tell me why they would or wouldn't rehire the person. Unfortunately, this technique has been known to backfire on me. I was once checking references on a gentleman who had worked for three different companies. The first two gave absolutely raving reviews (even going to the extent of telling me to tell him to come back and see them about jobs they had open). The third company, though, gave only a rank/seriel number reference and wouldn't tell me much of anything. When I got to the part about "would you rehire this person". The lady I was talking to responded very quickly, "oh, no, we couldn't do that". I waited quietly, and she said nothing, so finally I had to ask her why. That is when, in all seriousness, she told me she wouldn't rehire him because his position was already filled and they couldn't just fire the guy to bring the him back. I had to bite my tongue to keep from laughing, but had to go a bit further and rephrase my question just to see what her response would be: "Ok, if you had a position open that he qualified for, would you rehire him?" She answered: "Oh, absolutely! He was an outstanding worker, we hated to see him leave! In fact, we are hoping the new guy will just quit so we can call him back."

A. Rodriguez
Human Resource Manager

Cotterwood · April 2003

Dasher You and I both know there are ways to get that all important info on an employment candidate.

The method that I use is to ask my question, then give them a range from 1-5 as to the 'value' of the candidate in a particular area, i.e., "Using a range of 1-5 with 1 being a fail - what would you say about X's computer skills?"
I'm finding, that more supervisors are comfortable with the number system than words, and get a better idea of the candidate this way. Of course, there are a few that still stick to 'name, rank, and serial number'.

SMace · April 2003

Questions are NEVER illegal. What you do with the answer is what can be illegal.

Also if they are not in a protected class how can they bring a "wrongful discrimination" suit against you?
I think the relpy is implying that it is illegal to find out information about a prospective new hire. That is wrong.

If you have a signed consent to check references, you ask about a discharge and they give you information that compells you not to hire, as long as you haven't discriminated against that person based on a protected class you are OK. In that instance, if the info is false, the person and company giving that info is the one that will get sued. I think they just got back from a seminar and failed to take accurate notes.

Just my thoughts.

FrayWitzer · April 2003

This is the second time recently that I have seen someone state that an application question can never be illegal. For the record, here in Massachusetts, there are a number of application questions that are clearly illegal. Indeed, the Massachusetts Commission Against Discrimination has a worksheet listing out some of these questions. I don't doubt that this is different in other states, but I thought a word to the wise might be in order...

SDDCHR · April 2003

This is not an illegal question. As stated, the responding employer needs to answer it objectively or not at all.

pecohr · April 2003

What's a "wrongful discrimination" anyway... is there a rightful?

Leslie · April 2003

The employee's signature is at the bottom of the above questionnaire under the following:

APPLICANT WAIVER
I hereby authorize each and every one of my former employers to answer the above questions and to release all records of my employment, excluding records concerning illness or injury but including assessments of my job performance and ability, requested by (company) in connection with my application for employment with (company). Furthermore, I hereby release each and every one of my former employers and their agents from and all liability of any type for providing this information. A photocopy is valid as an original.

You may not answer, but lots of people do - sometimes with an amazing amount of information!

Don D · April 2003

Sure there is 'rightful' discrimination. Rightful discrimination examples are: Your choosing between raisin bran and wheat chex in the morning; your spouse selecting polka dot boxers instead of wearing none; your decision to feed corn to the ducks on saturday morning instead of mowing the lawn. Wrongful discrimination is illegal. Rightful discrimination is not illegal. Maybe dumb, but not illegal.

safety · April 2003

Sure am glad you're back Don D, missed your insight! x:7

Hunter1 · April 2003

This has turned into an interesting thread. I have told people for years that I get paid to discriminate, and I truely believe that we all do. I discriminate on a daily basis: I try to hire those people who will do a good job for my employer, and to discriminate against those who won't. To discriminate means to make sensible decisions, or to judge wisely. Discrimination has a bad name, but there certainly is 'rightful discrimination', and if we don't do it, we're not doing our jobs.

Mentel · April 2003

I, too, discriminate but I'd like to think of it as "having discriminating taste". We choose the best candidates and discriminate against the losers.

Whatever · April 2003

REminds me of the old statement "I am not a bigot, I hate everyone."

WOCO Frank · April 2003

To answer Don's earlier question...

Yes, if Leslie provided me with a copy of the signed release I would complete her questionnaire thoroughly, using whatever objective, documented information I have at my disposal.

Under Missouri law, I am even allowed to offer truthful, relevant information that *isn't* requested on the form, and I often do so. As long as the information I provide is truthful, and related to job performance, I am protected.

Besides, I'm just a stand-up helpful kinda guy.

David Nagle VA · April 2003

As one of the Attorney Editors, I feel an obligation to jump and an confirm, as nearly all of the HR professionals have already stated, that the question posed on the form is not unlawful. Reliance upon the answer is not unlawful either. (Of course, an employer could engage in unlawful discrimination if it only asked the question, or only used the answer, with respect to certain candidates. For example, if the question was only asked with respect to female candidates, or negative answers were only used to disqualify hispanic candidates, then the question itself would still not be unlawful, but the practice would be unlawful).

As presented here, there isn't any statute that come into play at all. Defamation is the cause of action that we ususally worry about in such inquiries, and the defamation occurs, if at all, not in the asking of the question, but in the providing of a FALSE answer that damages the reputation of the candidate. A truthful response is not defamatory. In most states, a privilege (common law or statutory) attaches to good faith responses given to requests for references.

The company that employs the person who returned your form with the comment either needs to get him or her some training, or they need to hire one of the folks who have previously posted replies to your question.

Illegal Question?

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