How to Avoid Hiring Hazards

By W. Barry Nixon

The résumé provides the first indication of whether the person is qualified for the job. Though this sounds simple, eliminating unqualified persons from the hiring pool immediately will help reduce future lawsuits brought by applicants who feel that they were not hired due to an unlawful reason--such as their gender, religion, or race.

If the résumé does not indicate the requisite experience or educational background, that applicant should be taken out of the hiring pool. This will help employers avoid future lawsuits.

If an employer does not want to hire a candidate because he does not have the appropriate experience, and if some of those candidates happen to belong to a minority class, the employer will be in a strong legal position in a lawsuit if all applicants without adequate experience were taken out of consideration at the same stage of the process and in the same manner.

To ensure that the applicant is qualified for the job at hand, managers should carefully read the description of the work the individual was responsible for and compare it to the duties of the job they are filling. If the two do not match or something appears to be missing or unusual, the applicant should be rejected.

Once satisfied that the applicant's qualifications and experience are a good match for the position, the hiring manager should arrange to interview the applicant.

Interviews are an important part of the hiring process. They allow the manager the opportunity for in-depth questioning and dialogue, and they provide a chance to assess how well the person will fit in with the organization. However, interviews must be conducted carefully so that the manager can avoid asking potentially discriminatory questions.

Civil rights legislation prohibits employers from considering any potentially discriminatory information during the interview. Such issues include all questions about an applicant's race, religion, sex, national origin, or ancestry. Similarly, managers should avoid asking applicants questions about their age, disability, military history, union membership, or sexual orientation.

Managers should be familiar with the two types of discrimination that could land them in court--disparate treatment and disparate impact.

Disparate treatment. In a hiring context, the disparate-treatment theory of discrimination applies to situations in which a prospective employee claims that he was not hired because of a discriminatory reason. The interviewer must be careful to ask all prospective employees the same questions and to avoid all questions that are not work related or that might be considered discriminatory.

For example, asking only one candidate to provide information about his age or asking women, but not men, about child-care arrangements could be considered disparate treatment in hiring. Asking questions of married female applicants that are not posed to all applicants could be viewed as discriminatory as well.

Disparate impact. Disparate impact claims arise when job applicants challenge seemingly neutral treatment as being in fact a standard or requirement that favors one group over another or specifically disadvantages one group. For example, a policy requiring certain educational levels might be subject to a disparate impact claim based on age or race. Another example would be to ask every applicant about whether they have or plan to have children because the question has a greater effect on females than on male applicants.

The manager should be able to demonstrate that all the interview questions relate to a requirement of the job. For example, requiring that an engineer have an advanced degree would not be deemed discriminatory even if it did prevent a certain group of people from being hired. It is clearly a legitimate requirement for performing the job.

Questions. Managers should remember that in most companies there are no job-related considerations that would justify asking an applicant a question based on race, gender, or religion. The only exception to this rule applies to religious institutions, which may give preference to individuals of their own religion. Similarly, managers should regard any questions about an applicant's sexual preferences as strictly impermissible.

Similarly, questions of national origin may not be posed. For example, managers may not ask an applicant where he or she was born or where the applicant's parents were born. However, asking whether the applicant is eligible to work in the United States is permissible.

Questions about height or weight may lead to gender or national-origin discrimination claims unless their relationship to specific job requirements can be demonstrated.

According to the Equal Employment Opportunity Commission (EEOC), any question that is age-related, such as asking whether an applicant is a recent graduate, is potentially unlawful under the Age Discrimination Act of 1967. The act bars discrimination against persons age 40 or over.

Questions relating to an applicant's arrest record are also improper. The EEOC and many states prohibit the use of arrest records for employment decisions because they are inherently biased against applicants in protected classes.

Questions about an applicant's conviction record may be asked, however, if job related. For that information then to be a factor in the hiring decision, the employer must establish that it constitutes a business necessity.

In establishing business necessity, the employer must consider three factors to justify the use of that record:

  • The nature and gravity of the offense underlying the conviction
  • The amount of time elapsed since the applicant's conviction and the completion of the sentence
  • The nature of the job as it relates to the nature of the offense committed

In terms of financial status, managers should not ask whether the applicant owns or rents a home or car, or if wages have been previously garnished, unless financial considerations exist for the job in question. For example, this question might be allowed when hiring a financial officer for the company. Also, any employer who relies on consumer credit reports in its employment process must comply with federal law governing the use of such reports.

Applicants cannot be asked what type of discharge they received from the military. However, other types of questions, such as whether or not the applicant served in the military, period of service, rank at time of discharge, and type of training and work experience received while in the service are all valid questions.

To avoid discrimination claims on the grounds of disability, managers should not ask whether the applicant has a particular disability. Managers may only ask whether the applicant can perform the duties of the job in question with or without a reasonable accommodation.

The guiding principle to follow when conducting interviews is whether the employer can demonstrate a job-related necessity for asking the question. If a discrimination claim against the company is made, the EEOC will examine both the intent behind the question and how the information is used.



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