Partner attorney, Callahan Thompson Sherman & Caudill
In the recent Burwell v. Hobby Lobby case, the U.S. Supreme Court struck down the contraceptive mandate imposed under the Affordable Care Act. The court held that requiring employers to cover certain contraceptives for their female employees violates the Religious Freedom Restoration Act. Though the Hobby Lobby decision leaves many questions unanswered, some ramifications are already coming to light.
Second, the ruling will unfortunately further complicate the hiring process for employers.
Indeed, a minefield of problems when interviewing prospective job candidates already exists. Federal and state laws both limit the types of questions an employer can ask a job candidate during an interview and Hobby Lobby does not change that. An employer must continue to avoid questions about religious beliefs, marital status, family planning and prescription drug use, among many other things.
However, job candidates remain free to ask question to prospective employers about anything, including the owners’ religious beliefs, company culture and medical benefits. Following the Hobby Lobby decision, these types of questions could become more frequent during the interviewing process. In doing so, the job candidate puts the employer in a difficult situation and opens the door to a potential discrimination claim if not handled properly.
When this happens, the employer should still refrain from any discussion involving these topics. Instead, the employer should provide the job candidate with written literature about the company, or simply direct the candidate to the employer’s website for more information about the company. The employer also can provide a summary of its health plan. Often, this information will be enough to answer the candidate’s questions and should allow them to make an informed decision about their prospective employment with the company.
CRA Legal Center attorney Douglas A. Wright is a partner at Callahan Thompson Sherman & Caudill, based in Redding.