Sounds More Like an Interrogation

Have you ever had to go through the pain of a job interview?   Me?  I've done lots of them.

Among other things, what I got out of the interviewing experience was a long list of illegal questions potential employers ought not ask in an interview.

 Why?

Most illegal questions focus around one thing - they don't relate to how a job is to be performed.

Samples of illegal questions include:

• How old are you?  Why illegal: Age discrimination is prohibited under the Age Discrimination in Employment Act (ADEA) if the applicant is 40 or older. Age should not factor into hiring decisions.
• Are you married?  Why illegal: Marital status is not relevant to job performance and may lead to discrimination based on marital or family status.
• Is English your first language?  Why illegal: Related to national origin discrimination.
• Do you have any disabilities? Why illegal: The Americans with Disabilities Act (ADA) prohibits asking about disabilities before a job offer is made.
• Have you ever filed a Workers' Compensation claim?  Why illegal: This could lead to discrimination against individuals who have been injured and violates ADA protections.
• Have you ever been arrested?  Why illegal: While convictions may be relevant, arrests without convictions should not be used in hiring decisions, as it can lead to racial discrimination claims.
• Who do you live with?  Why illegal: Could reveal marital status, family structure, or sexual orientation, which may lead to discrimination.
• Do you drink or use drugs?  Why illegal: Employers cannot ask about past substance abuse; they may only ask if you can perform job duties safely.

Recently, I had an interview for the position of library director of a public library.  Yeah, I know - not legal.  But over time, you realize that all library's have the same issues.  

One question they asked (and it was couched in a way so try to make it less obtrusive saying "We ask everyone this question - like that makes it all better): 

If we were to look at your social media content, would we find anything objectionable?

First, what does "objectionable" mean?  What might be objectionable to one person might not be to another.  

To the point of whether it is a legal question, or not, the question itself is not explicitly illegal under federal law.  However, it is risky and can lead to illegal discrimination if used improperly.

So, how might this question about social media be be problematic?

While reviewing publicly available information is legal, asking about it during an interview could:

• Pressure candidates to disclose personal information (which it did and, by their reactions, is what they were hoping for),
• Create a chilling effect on lawful off-duty conduct (some states, like California and New York, protect lawful off-duty activities).

In addition, questions about social media usage could suggest implied off-duty conduct discrimination. In many states, it is illegal to discriminate against lawful off-duty conduct, such as political activity, social associations, or lifestyle choices that are not job-related.

Another reason questions about social media usage are problematic is because this type of question leads to potential for discrimination based on protected categories such as:

• Age (ADEA) 
• National origin (Title VII)
• Race or ethnicity (Title VII)
• Religion (Title VII)
• Sexual orientation or gender identity (Title VII, EEOC interpretations)
• Disability (ADA) 
• Pregnancy (Pregnancy Discrimination Act)

Finally, if an employer later rejects the candidate, the candidate could argue the rejection was based on information discovered through social media about protected characteristics.

A better question they could have asked me might have been: 

This role requires maintaining a professional image consistent with our code of conduct, including public-facing behavior and communication. Can you comply with this expectation?”

OR

We expect employees to adhere to our social media policy regarding confidentiality and professionalism. Are you comfortable with this policy?

Other questions which are not in-and-of-themselves illegal but suggest an illegal motive thereby making them illegal questions include:

• Can you work nights or weekends?  Not illegal in itself if the job requires it.  Becomes illegal if used to screen out candidates based on religious practices or caregiving responsibilities (religion, gender, family status).  Example: Denying a candidate who observes a religious Sabbath without exploring whether accommodation violates Title VII.
• Do you have reliable  transportation? Not illegal in itself.  Becomes illegal if used to screen out individuals based on disability (can’t drive due to medical reasons) or economic status. 
• What club or organizations to you belong to?  Not illegal in itself.  Becomes illegal if it seeks to uncover religious, political, or protected affiliations or if the information is used for discrimination. 
• Can you lift 50 pounds?  Not illegal if it is a bona fide job requirement.  Becomes illegal if asked without stating it is a job requirement and is used to screen out individuals with disabilities, violating the ADA. 
• What year did you graduate?  Not illegal in itself.  Becomes illegal if it is used to determine age, violating ADEA protections. 
• Have you ever been arrested?  Not illegal to discuss convictions related to job duties.  Becomes illegal because arrest records alone should not be used in employment decisions, leading to disparate impact on certain racial groups. 
• Are you planning on starting a family soon?  Not illegal to ask about availability.  Becomes illegal because it suggests gender/pregnancy discrimination under Title VII and the Pregnancy Discrimination Act. 

So, why are these questions illegal?  Essentially, the motive behind the question and how the information is used determines legality.  Questions that can elicit information about protected categories (age, disability, gender, religion, national origin, etc.) and influence hiring decisions violate:

• Title VII of the Civil Rights Act (race, color, religion, sex, national origin)
• ADA (disability)
• ADEA (age 40+)
• Pregnancy Discrimination Act
• Immigration Reform and Control Act (work authorization vs. citizenship)

Bottom line, if you aren't sure whether you should ask a question and are concerned that it might expose you to liability, your best bet would be to either run it past legal first or just not ask that question.

I'm just sayin. 

Word of the Month for June 2017: Service Animal

I gotta wonder what some people think about when they wake up in the morning.  Specifically, I'm talking about the people who come into my library looking to pick a fight with a Law Librarian. 

Take, for example, the Lady who came in the other day.  Seems she has a dog that she doesn't like to leave in her hot car - so she brings it everywhere she goes.  The problem is that like our Library, not all businesses just let you bring your dog/animals into their place of business.  To get around that, Lady started claiming that her dog was a "SERVICE ANIMAL."

According to Black's Law Dictionary, a SERVICE ANIMAL (aka service dog) is:

a dog trained to assist a disabled person with everyday tasks of living and alert the person to threats.  A service dog may be identified by the type of disability it's trained for.  Also termed assistance dog; guide dog; seeing-eye dog; hearing-ear dog.

The problem is that Lady is standing in front of me demanding to see the law that requires that her dog be a "Service Dog."  So, I did a little digging.  First, I started looking in the United States Code Annotated, Title 40 Section 3103 and Title 38 Section 1714.  Title 40 referred me to title 29 USC 794 (Rehabilitation Act of 1973) and 28 CFR Part 39 (non-discrimination based on handicap).  For the record, "CFR" stands for Code of Federal Regulations.

After a little reading (well, a little for me), I found references to 28 CFR 35 (part 2 of the ADA) and 28 CFR 36 (part 3 of the ADA).  Then I stumbled upon 28 CFR 36.104 which states that:

Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.  Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition.

The work or tasks performed by a service animal must be directly related to the individual's disability....The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.

So, what does all this mean?  

• First, just because it's a dog, does not make it a "SERVICE ANIMAL."  
• Second, if the only reason you want to bring your animal into a place of business is because it comforts you, it's not a "service animal" and can be denied entrance.  
• Third, if you do not want your dog/animal to swelter in a hot car, get used to leaving it at home because unless it is an animal that is trained to service a particular task as it relates to a particular person's disability, then the business owner does NOT have to let that animal in their front door.  

Another thing to note is that there is a difference between a SERVICE ANIMAL and an Emotional Support Animal ("ESA").  Where a SERVICE ANIMAL can accompany its owner most anywhere, an ESA designation only allows said animal:

1. To fly with their emotionally or psychologically disabled handler in a cabin of an aircraft (under The Air Carrier Access Act of 1990), and
2. To qualify for no-pet housing (under The Fair Housing Amendments Act of 1988)

In fact, an ESA pet has no more rights than any other pet. Oh, and if someone does bring an animal to your place of business and says it's a "SERVICE ANIMAL," you can legally ask what its specific task is (and point them to 28 CFR 36.104 if they put up a fight or threaten an ADA lawsuit).

Of course, by the time I came up with all of this useful information, Lady had threatened lawsuits, vowed she would be vindicated, and left in a huff...which is how these things usually end.  Talk big and walk out before they get a definitive answer.

Bottom line, if you have questions (or think you have what it takes to take on a Law Librarian), we take all comers.  Just be ready for a take-down (because Law Librarians have scary awesome research skills).

No Room for You

So, the other day whilst playing basketball, I go up for a rebound and when I came down, I heard a "pop" in my knee. Months later, still I'm hobbling around in pain.

As wicked as that injury was, I suspect it in no way measures up to the grief people who are genuinely handicapped feel when they try to park their cars.  I mention this only because the other day we had a person come into the law library. Seems person had parked in a spot that was not a designated handicapped parking spot in a private lot but person had their handicap placard displayed on their rear-view mirror (for the world to see) and was, subsequently, were towed.  Person had to pay the impound fee plus a parking ticket.  Person was not happy (mad as 10 wet hens).  Person wanted to know the law on handicapped parking and if they could get their money back.

For the record, I live in California.  What this means is that the laws of Pennsylvania, Montana, Wyoming, Texas, or Alabama laws are just words scrawled on paper for all I care. So, if you live in those states (or any of the other 45 states) and need to know the laws, you might try looking them up on your state's website or on the Internet (I ran a search in Google.com for: state handicapped parking laws).  The one unifying law that ties all states together, is the Americans with Disability Act (ADA).  As it turns out, the ADA has a number of provisions that relate to parking and handicapped people.

If you live in California and you have a (or plan on having a) disability and you're thinking of getting one of those blue placards, then you're going to want to point your attention to:

• California Government Code 14678.5
• California Vehicle Code 21458, 22511.3 - 22511.85, 22511.11 

As to whether person can get their money back, that's a whole 'nother litigation issue - I mean, have you ever tried squeezing blood from a rock (i.e. government)?  Yeah, good luck with that.  In the mean time, know that if you ever need help finding stuff of a legal nature, your local county law library has just what you need.