An Administrator's Guide to California Private School Law

Chapter 3 – Hiring

Employers should ensure that they do not overemphasize the importance of the interview. While the interview plays an essential role in the hiring process, many employers put too much emphasis on the interview and pay too little attention to the other important steps in the hiring process. It is common (and a mistake) for interviewers to shortcut the other steps once they meet their favorite candidate in the interview. The risk in overemphasizing the interview is that the assessment of a candidate’s performance in an interview is highly subjective. From a legal perspective, subjective decisions are much more difficult to defend than decisions based upon more objective criteria, such as scored exams.

LCW Practice Advisor

E. E XCEPTIONS F OR R ELIGIOUS S CHOOLS Religious schools may restrict employment to those of a particular religious group. Therefore, even though religion is a protected status, religious school employers may ask potential employees questions about religion. 267

Section 8 C ONDITIONAL J OB O FFERS Federal and state laws restrict the timing of an employer’s acquisition of medical information about the medical conditions and impairments of applicants and employees. To ensure that employers do not improperly consider disabilities when evaluating applicants, both the ADA 268 and the FEHA 269 restrict the employer’s ability to ask questions about an applicant’s medical condition and/or to require an applicant to undergo a medical examination until after the employer has made a “conditional offer of employment.”. Employers also may not ask questions about disabilities prior to making a conditional offer of employment. 270 A “conditional offer of employment” is a real job offer that the employer: (1) makes after it has evaluated all relevant non-medical information that it could reasonably have obtained and analyzed prior to making the offer; and (2) conditioned upon acceptable medical information, such as passing a physical or psychological examination, that is directly related to job performance and business necessity. 271 In order for an employer to consider a conditional job offer a “real” offer, it may not conduct medical examinations or make medical inquiries of applicants until after the employer has evaluated all non-medical information. 272 In most cases, if an employer is still waiting for the results of a background check, it may not consider an offer a conditional offer of employment for purposes of the ADA. 273 In the very limited case where an employer can show it could not have reasonably obtained the non-medical information earlier, the employer may collect that information after it has made a conditional offer. 274

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 90