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Every individual is unique, but the laws that govern employment so often stress uniformity and even-handed treatment across the board that it is hard to remember that employers can still treat employees as individuals.

A recent informal advisory opinion from the Equal Employment Opportunity Commission reinforces that principle, at least in regard to screening and hiring processes. The advisory opinion was written in response to an employer’s inquiry as to whether applicants were being treated the same or at least with sufficient fairness if hiring managers used written questionnaires. But some candidates were asked follow-up questions, some were asked different follow-up questions, and others were not asked any additional questions. In other words, the employer was worried about whether it could continue to follow a screening and evaluation process in which some candidates were treated differently from others.

The law does not require that the employee screening process be identical for all candidates, and that means that some candidates can be asked different questions or even routed through different employment screening processes altogether. But every bit of employment advice comes with a caveat: Employee screening can differ from candidate to candidate, as long as the differences aren’t based on the candidate’s age, race, sexual orientation, gender or any other protected class. Employers can choose to conduct in-person interviews for the ones who look more qualified than the others, and they can ask the Harvard graduate different questions than they ask the Yale graduate.

But wide variations in the screening process may raise some eyebrows and invite extra scrutiny into the process to see whether the differences may be unfairly related to a protected class. So, for example, an employer may call all the references for one applicant but not others because something on the resume looks fishy; that would be a follow-up decision based on qualifications and is absolutely acceptable. But an employer who calls all the references only for the minority applicants and takes the others’ references at face value just invites trouble.

There are additional considerations involved with the process of screening candidates with disabilities because they have to be treated the same except when the law says to treat them differently. So employers who perform post-offer, pre-placement medical tests must require all candidates in the same job classification to undergo the tests. That’s a very plain, formal requirement that all candidates in this category be treated alike.

On the other hand, candidates with disabilities may be legally entitled to be treated differently because an employer must provide reasonable accommodations, if needed, for everyone to navigate the screening process. If a candidate has an obvious impairment that may preclude job performance, employers are permitted to ask for a description or demonstration. But asking for descriptions or demonstrations in an effort to determine whether there is an impairment that is not obvious would probably violate the complicated Americans with Disabilities Act, at least in the opinion of the EEOC, which has prepared a comprehensive guidance document on Pre-employment Disability-Related Questions and Medical Examinations at www.eeoc.gov.

Make it a point to follow the best practices:

• Although the screening and application processes of candidates are not required to be uniform, the more so the better.

• Be particularly careful with substantial deviations from the norm when they affect candidates from protected classes, unless the deviations are unrelated to inclusion in the protected classification.

• Focus on qualifications; after all, the process should be designed to pick the person best qualified to do the job.

• Don’t treat candidates with disabilities differently unless it is for an application-process accommodation or to follow up on an obvious impairment that is likely to interfere with job performance.

• If the selection process isn’t adequately differentiating candidates, it may be due to poorly structured screening questions. Make sure that they let each candidate’s special voice be expressed.

And remember that every individual is unique, even when he or she becomes an employee.
The EEOC’s advisory opinion is available at www.eeoc.gov.

Paula Barran, a founding partner at Barran Liebman LLP, has been practicing labor and employment law since 1980. In addition to regularly providing employer advice and solutions, she handles employment litigation in state and federal courts, labor disputes and employment arbitrations.