Hiring 101: Tips to Avoid Legal Landmines

October 25, 2011

Choosing, hiring and retaining good employees is always of the utmost importance. Often, supervisors and managers have only one opportunity to evaluate and determine if a candidate is the right person for a particular job-the employment interview. Thus, managers and supervisors must have sufficient interviewing skills to obtain the information necessary to make a thoughtful and accurate evaluation of a candidate.

Learning basic interviewing techniques and ideas helps managers and supervisors gain the skills necessary to put the right people on the job and avoid various legal pitfalls involved with interviewing.

Recruiting Candidates

Federal and State law prohibit discrimination in hiring the same as they do during the employment relationship. Sometimes an employer’s recruitment efforts have the unintended effect of illegal discrimination. For example, it is not uncommon for an employer to obtain job applicants through word-of-mouth, nepotism or unsolicited walk-in applications.

It is important to remember that even potential applicants who did not formally apply may be able to state a claim under Title VII if the recruiting methods used never brought the opening to their attention, or the employer’s application methods “chilled” certain groups from applying.

Word-of-Mouth: While word-of-mouth recruiting is not illegal per se, there is an inference that when notifying people of job opportunities, employees will typically notify people of the same race and gender as the employees. To establish discrimination, however, it must be shown that the practice is part of a pattern of intentional discrimination.

Nepotism: Like word-of-mouth, nepotism is illegal only if it can be shown that its practice has an adverse impact against a protected classification of applicants.

Walk-in Applications: As long as there is no disparity between the employer’s applicant pool and the relevant labor market, this recruiting method is generally lawful.

Help-wanted Advertisements: It is unlawful to indicate in job advertisements a preference for race, color, religion, sex, national origin, or age, unless one of these factors is a bona fide occupational qualification.

Legal Aspects of Interviewing

Now more than ever, a simple employment interview can be a potential minefield for supervisors and managers. Interview questions, in and of themselves, can form the basis of a lawsuit, no matter how innocent they seem. The law is constantly changing and anyone participating in an interview of a new employee must be certain to avoid questions which could be considered discriminatory. It is impossible to list every question which can be asked, but as a rule of thumb, if the question does not directly relate to whether or not the individual can do the job, DON’T ASK IT!!!

Avoiding the Grasp of the EEOC

Recently, the EEOC adopted the recommendations of an internal task force which recognized a “deficiency” in its investigation and litigation of “systematic” cases of discrimination: CLASS ACTIONS. The EEOC has publicly announced a new direction in its pursuit of discrimination claims, shifting its focus from individual charges to claims involving a “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location.”

Some of the recommendations made by the task force include:

  • Creation of incentives to encourage EEOC employees to identify, investigate, and litigate “systematic” cases;
  • Expanded investigations of individual charges which may lead to the discovery of “systematic” discrimination;
  • Shifting of resources from individual and small class cases to larger cases of alleged “systematic” discrimination; and
  • Creation of outreach programs to community organizations, workers, the plaintiff’s bar, and state and local agencies to identify potential areas of “systematic” discrimination.

Last year, the EEOC reported that 99,922 claims alleging employment discrimination were filed against private sector employers. While the number of claims filed with the EEOC will likely not wane, there has already been a change in the way they are approached. These changes will have a substantial effect on hiring practices in the United States. As the EEOC intensifies its pursuit of “systematic” cases of discrimination, investigations are likely to intensify, and the plaintiff’s bar is expected to respond accordingly. To avoid the possibility of facing a class action lawsuit challenging your company’s hiring practices, the following tips should be considered:

  • Track your applicant flow data: This will help reduce our liability in potential hiring claims. If Insurance Agencies can show who applied for the job, we can better defend against lawsuits. Insurance Agencies should gather demographic data by attaching the Voluntary Applicant Data Request (VADR) form. This form is both EEOC and OFCCP compliant. A copy of this form may be found at https://www.ltd.org/pdf/Vol%20App%20Data%20Record.pdf. You should keep applicant flow data for a minimum of four years.
  • Do not use rigid cut off scores for employment tests: unless they have been properly validated by an expert in job selection procedures. Current tests should be used as one of many tools to make a decision on a given selection criteria. Avoid using the same or similar tests for both hiring and promotion decisions.
  • Job posting should state only the criteria that will be used in the selection process: Try and explain the process for job selection in the job posting. Limit the criteria on a posting to no more than 8 criteria. Try to list objective criteria in the job posting.
  • Interviews should assess defined criteria. There should be a defined set of questions for each interview. The questions should seek to determine whether the job applicant meets the defined criteria set for the job. The criteria should also have some type of rating system (i.e., if one criterion is more important than the rest, this should be documented). Notes should be taken on the job interview and kept for four years (preferably in job folder for each filled job). These notes should reflect how this person measures up to the specific criteria listed in the job posting. Remember, your notes can always be subject to review if a lawsuit is filed. Finally, always maintain annual training for all personnel involved in selection decisions.

Reasonable Accommodation in the Hiring Process

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against qualified persons with disabilities who are able to perform the essential functions of the job, with or without reasonable accommodation, provided the accommodation does not place an undue burden on the employer. Depending on the pre-offer and post-offer stages of the interview and hiring process, the ADA limits an employer’s ability to make disability-related inquiries or to require medical examinations. If an employee requests a reasonable accommodation during the interview process, employers are required to provide such accommodation unless it would cause an undue hardship. Some examples of what the EEOC considers to be reasonable accommodation in the interview process include:

  • Providing written materials in accessible formats, such as large print, Braille, or audiotape;
  • Providing readers or sign language interpreters;
  • Ensuring that recruitment, interviews, tests, and other components of the application process are held in accessible locations;
  • Providing or modifying equipment or devices; and
  • Adjusting or modifying application policies and procedures.

During the hiring process, and prior to making an offer, an employer may not ask an applicant whether he or she needs a reasonable accommodation. When the employer knows that the applicant has a disability, either because it is obvious or is voluntarily disclosed, the employer may ask whether the applicant will need an accommodation. The employer may also ask for a demonstration as to how the disabled individual could perform the essential functions of the job, such as lifting certain weight.

Post-Offer Inquiries and Considerations

Once a job offer has been extended, the employer has much greater latitude. Employers may condition the start of employment on the successful completion of a medical examination, including a psychiatric examination if:

  • The examination or inquiry is required of all employees entering the same job category regardless of disability;
  • Information on medical conditions and history is maintained in a separate, confidential file; and
  • The results of the examination are used only in accordance with the ADA.

An employer who withdraws an offer of employment because the medical examination reveals that the applicant cannot perform the essential functions of the job, even with a reasonable accommodation must demonstrate either that (a) the criteria does not screen out or tend to screen out individuals with disabilities or (b) the criteria are job-related and consistent with business necessity and there is no reasonable accommodation that would enable the individual to perform the essential functions of the job without undue hardship on the employer.

Drug Testing

The ADA specifically states that, for purposes of the ADA, tests to determine the current use of illegal controlled substances are not considered medical examinations. Therefore, pre-employment drug tests are permissible for private employers.

What About Alcohol Testing? In an odd twist of logic, it is determined that tests to determine whether and/or how much alcohol an individual has consumed are medical and are, therefore, illegal during the pre-employment stage.

It is hard enough in today’s economic climate to find qualified applicants for your company’s needs. The last thing you need is to be tripped up by failing to identify and comply with the myriad of laws that govern the hiring process. However, with proper planning and training, even these hurdles can be rather easily overcome.