Mona Koppel Mitnick, Esq
Public
Board Member, Association of Psychology Postdoctoral and Internship Centers (APPIC)
This article is reprinted in the APAGS Newsletter with permission from the
APPIC Board. The information in this article is only intended to provide
practical guidance. It is not intended to be definitive or to be relied on
without first consulting your legal counsel. Visit the APPIC Web site at: www.appic.org.
In this, my first column as APPIC’s new Public Board Member, I will discuss
an issue that causes consternation and confusion among both internship and
postdoctoral center interviewers and applicants/interviewees: personal questions
on applications and during interviews. Such questions, if asked only of certain
applicants, can be inherently discriminatory; e.g., asking only female
candidates who have not raised the issue whether they have families and, if so,
whether they can work the long hours required by the intern/resident position.
Similarly, it is inherently discriminatory to ask only persons who appear to
have a physical disability or limitation, who have not raised the issue, whether
they can perform the physical requirements of the intern/resident position. Or,
such questions can raise the specter of possible discrimination to the
applicant/interviewee where, for example, they are not relevant to the position.
This article will offer some general principles that you should follow, and
will make some suggestions as to how to decide when such questions are
appropriate or inappropriate. Generally, interviewers may ask questions about an
applicant/interviewee’s education, language proficiency (if directly relevant
to the requirements of the position), training and experience in
psychology/mental health areas, past practica and placement, career interests
and goals, professional memberships, and any other subjects directly related to
the internship and the psychology profession. Asking the same basic questions of
all applicants/interviewees should be the standard, insofar as possible.
Conversely, personal questions may not be asked before hiring (i.e., on an
application or during an interview) unless, either, the questions relate to bona
fide qualifications for the position, or the applicant first raises such
issues him/herself. For example, questions should not be asked about a candidate’s
marital or family status, religion, or physical condition or limitations. An
exception to this rule is that Federal government agencies, states, and
municipalities, and many state universities, generally require an employee to be
a U.S. citizen. They also may require some explanation of any criminal record
other than misdemeanors. While it is not always clear whether an intern/resident
is an employee or a student, such questions may be permissible when the
internship/postdoctoral center is a government agency or government-affiliated
entity.
Another permissible question, relating to bona fide qualifications for the
position, is if the position requires heavy lifting or other physical exertion,
can the applicant meet these physical requirements? In this context, the
internship/postdoctoral center also may require the applicant to take a physical
examination. However, any such questions should be asked of all applicants, not
just an applicant who appears to have a disability or physical limitation.
Even impermissible questions sometimes may become permissible if the
applicant first raises the issue. For example, if an applicant/interviewee asks
questions about the hours of work and mentions family responsibilities or
his/her religion and requests accommodation in work hours, or asks about the
physical demands of the position and mentions physical limitations, the
interviewer may follow up on such questions.
Other questions, which may be impermissible on the application or during an
interview, may become permissible after the intern is hired. For example, proof
of age and marital or parental status may become relevant, after hiring, for
tax, insurance, and emergency contact purposes. Photographs also may be required
after hiring for identification cards.
Some questions are almost never permissible. For example, one should never
ask questions about sexual preference or whether someone has a particular
disease, such as AIDS. On a related topic, some issues never go away. In the
Summer 1991 issue of the APPIC Newsletter, APPIC’s previous Public Member,
Patricia A. Hollander, Esq., responded to questions about intern/postdoctoral
applicants using client videotapes as work samples. Briefly, she stated:
Disclosure of such videotapes without the client’s consent may constitute an
invasion of privacy; may violate state licensing laws or professional ethics
codes; and may subject the applicant, his/her faculty supervisor, the faculty
chair, and the graduate school or internship/postdoctoral site to a claim for
damages. While a client’s consent to the disclosure theoretically should
preclude a finding of liability for such an invasion of privacy, the consent may
be defective. She suggested that, to avoid the risk of exposure to legal
liability and possible damages, the intern applicant should find a substitute,
such as a simulation, for real-life videotapes.
This still is good advice. However, I would offer some further guidance on
this topic. Where an internship/postdoctoral center is a Federal or State
government entity, it also may be subject to that jurisdiction’s privacy
statutes. These statutes may impose legal requirements in addition to those
discussed above. See, for example, the Federal Privacy Act, 5 U.S.C. sec. 552a.
As a substitute for using the original videotape, the intern applicant also may
remove any identifiers (e.g., cover or somehow disguise the face of the client,
and delete any personal identifying information) or, if appropriate, convert the
video to an audiotape, also without identifiers. Using such videotapes remains a
legal risk.
This article first appeared in the Winter 2001 Edition of the APAGS
Newsletter, Vol. 13(1)
