Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.
We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran. The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant. Please give us your feedback – and let us know if you find the series helpful. Finally, these articles are not intended as specific legal advice. For that, please consult with an attorney licensed to practice in your state.
If you are running your own practice or are involved in evaluating new candidates for your group you probably know that there are some questions that you are, under EEOC regulations and related laws, not allowed to ask.
Your problem is that although you understand how essential it is to evaluate someone solely on their qualifications, avoiding not just actual discrimination but implicit bias, you also need to know more about whom you are hiring and how they will fit with the job.
You wonder how far you can actually go, where the line is between gathering the information you need to decide about hiring and impermissible questioning.
The answer lies in the fact that while asking directly about matters such as age, gender, sexual orientation, race, religion, national origin, marital status and pregnancy are illegal, the point of the laws is to prevent discrimination, not to prevent acquiring necessary information about a candidate. The critical issue in evaluating a question is therefore its intent.
Let’s look at some sample issues to see how a question could be a problem but how you could permissibly get the information you need by looking back to what you actually need to know.
- Our ob-gyn group needs to take on another doctor. This will be primarily for office coverage but they will also be on the call schedule, which is demanding. How much can we ask about the age of applicants?
If you are at an early stage in the process and do not yet have the applicant’s C.V., which would give you their age or permit you to infer it, it would not be permissible under the Age Discrimination in Employment Act, which protects workers over 40, to just flat-out ask how old they are or to indirectly ask for it with a question such as “When did you graduate from medical school?”.
However, you can lay out the demands of the call schedule and ask if the applicant foresees any difficulty in meeting them. This goes to the critical point of non-discrimination in questioning: the issue is not membership in an arbitrary demographic group but whether the applicant can be expected to fulfill the requirements of the job.
- Our nephrology group is connected with a good fellowship program. We are looking for a new associate physician and expect to get applicants from the program. Quite a few of the doctors in the program are from outside the U.S. Several are excellent and we would be glad to hire any of them but we don’t want to be involved in any immigration issues that will require them to leave in a year or two or, worse, any immigration violations. How much can we ask about their immigration and naturalization status?
Citizenship and immigration status are considered matters that you are not entitled to ask about as long as the individual’s paperwork is in order. However, in that regard, you can ask for proof of their current status.
In your situation, doing so will actually give you the information you need because it will indicate the type of visa the doctor may be on, how long they can stay past completing their training, when they have to renew, and whether they are moving towards citizenship.
Since your intention is actually the opposite of discrimination, when asking make it clear that your purpose is to make sure that the doctor that you select will be able to stay with the group into the future.
If you do not know a foreign-born applicant, you should not interrogate them about their status at the interview but you could ask something along the lines of “If you are hired, will you be able to provide proof of your immigration status?”
By the way, in your situation, you will likely already know the foreign-born doctors from the program. But if you did not, it would be prohibited to quiz them about their national origin or to try to get around that with a “friendly” question such as “That’s such an interesting accent. Where’s it from?”
- We are looking for a new nurse practitioner for our family medicine practice. We were quite impressed with one candidate, who attended a good training program and has glowing recommendations from her preceptors. However, since she is an observant Muslim (she wears a hijab) we are concerned about whether she will be able to deal with our male patients. How much can we ask about any religious restrictions she may be under?
Although you do not recognize it, this is how discrimination can actually work. Even though there were no comments in her school record or the letters from her teachers regarding her not being able to deal with male patients or requiring accommodations to do so, and even though she is applying to a practice that she knows has male patients, you are making an assumption about her because of her religion that could impact on her hiring.
The answer to your query is that you cannot ask those questions. All that you can ask is what you could ask any other applicant: whether they foresee any limitations in being able to fulfill their duties at the office. That should actually satisfy what would be a proper intention – to know that your new employee can do her job.
In this case, you know your prospective hire’s religious affiliation, but if you did not, it would be prohibited to try to elicit information about it with a question such as “Do you regularly participate in any activity outside work that could require not working on a specific day or leaving early on a specific day?”, basically looking for a pattern that would match a specific faith’s sabbath or weekly religious services. If you actually have concerns about a candidate being able to meet the schedule then ask that specifically.
- We are planning on opening a women’s imaging center, doing mammography and ultrasound. We anticipate that many technologist applicants will be young women who either have children or are planning on doing so. We are concerned with them needing to leave work to deal with problems about their children or leaving the job entirely because they have just had a child. How much can we ask about their present or future family situations, including pregnancy and childcare plans?
Questions about marital status and family structure and child-bearing and childcare are impermissible, as are questions trying to get at the same material such as “Is this your married name?”
This pertains to all applicants, including men and women past child-bearing age.
This is because, as in the question above, your concern should only be whether an applicant will have a conflict with the requirements of their job. What you can therefore ask is whether the applicant has or expects to have any commitments that may limit their availability.
Asking it this way is actually more helpful for you because an applicant may not have children now or plan to have them in the future or even have excellent childcare in place but may have other demands on her time such as caring for her grandmother or helping out in her husband’s deli or being a member of the town’s volunteer fire department. Again, as an employer, your concern is properly solely whether the employee can meet the demands of the job, not what their personal life choices are.
- We are seriously considering hiring a child and adolescent psychiatrist to expand that aspect of our psychiatry practice. She uses a wheelchair. Her work will involve speaking with patients, writing reports, and attending practice meetings so we assume that there will be no impediment for her due to her disability but we want to know if she needs any accessibility changes that might not be obvious to us, such as desk height. How much can we ask about accommodations that she may need?
This issue implicates both the ADA and the EEOC. The ADA makes it unlawful for an employer to discriminate against a qualified applicant with a disability and the EEOC enforces this provision.
Assuming that your practice is of a size to come under the ADA, since you are in the pre-offer phase the general rule would be that these questions could not be asked, even if the intention is a good one as in your case.
This would be so even if the question is put to every applicant in an ostensibly neutral fashion.
The reason for this prohibition is that questioning about accommodations could reveal a disability that the candidate otherwise could not be asked about during this phase of the evaluation process. In other words, what you intend as a genuinely helpful question cannot be used by someone else as an end-run around the prohibition against asking “Are you disabled in any way?” (Other such questions, such as asking about medications or medical care or prior accidents. would also be prohibited.)
However, your situation is an exception to that general rule because the disability is obvious and it is reasonable to question whether it might pose difficulties for this doctor in performing her job tasks. It would be the same situation if the disability was not obvious but the candidate volunteered that fact about herself.
Once an offer is extended, by the way, new hires may be asked about disabilities and needed accommodations as long as the questions are asked of everyone.
In summary: When interviewing a job candidate the sole purpose of the inquiry should be whether they can do the work. Several anti-discrimination laws, therefore, prohibit questioning that could serve an exclusionary purpose. However, careful questioning within legal limits can still provide the prospective employer with the information that they need to know.
Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.
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Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
