Be aware that a person can sue you even before they become an employee.

It is an unfortunate reality that an employer can be sued for employment discrimination — even before an individual becomes an employee. Numerous federal laws that prohibit discrimination in the workplace apply to the hiring process. The key to avoiding problems is to know what you can and cannot do and to set up systems to avoid legally hazardous conduct. Here’s how.

Start with a Good Job Description

Be sure that the job description used to recruit potential candidates is up-to-date and detailed. It should accurately describe the type of work, as well as the skill set needed to perform the work. If there are specific requirements, such as the ability to lift a specified amount of weight or to climb ladders, that information should be included in the description. Be careful, however, not to use general terms such as “strong” or “able-bodied,” because those terms may be construed as an attempt to discourage candidates with minor disabilities.

A good and detailed job description will provide a couple of benefits. First, it will provide you with an objective basis for evaluating candidates. The more objective your screening processes, the more difficult it will be for someone to claim that it is discriminatory. Additionally, the detailed job description may discourage inappropriate candidates from applying.

Make Sure Your Application Form Is “Legal”

Your application form should ask only for information that is relevant to your hiring decision. Importantly, there is a great deal of information that should not be requested.  Simply stated questions regarding age, sex, race, national origin, disabilities, type of military discharge, or pregnancy are all impermissible bases for making a hiring decision. A good rule to follow is that the information requested on the application should be job-related and consistent with business necessity.

Unfortunately, there are a number of “innocent” types of requests for information that can create problems. For example, asking a candidate when they graduated from high school or college might be viewed as an indirect way of asking questions about age.  

Use a Script for Interviews

If you conduct interviews, the use of a standard script can be used to defend your hiring practices. First, it will create inherent consistency in the hiring process. A consistent approach is a good defense against a discrimination claim, so long as it is also objective.  

Additionally, a script will assist the interviewer in avoiding straying into conversations that can create discrimination claims. For example, a discussion about family life, kids, and family plans might have elements that lead to a claim of discrimination based upon gender.

Use Pre-Employment Testing Judiciously

Pre-employment testing has become fairly widespread and can cover a range of matters. Some employers test for such things as skills and arithmetic and reading comprehension, as well as knowledge of a particular function or job. In some cases, employers are using physical tests to be sure that a candidate has the strength and stamina to perform a job. Other employers require medical examinations, personality tests, criminal background checks, credit checks, and even driving tests.  

None of these tests are inherently impermissible. However, problems could arise if the test is not truly job-related and appropriate for the employer’s purpose. Testing may give rise to discrimination claims if there is no evidence that the test bears a valid and predictive connection to the type of work that the candidate would be performing as an employee. Finally, a test that disproportionately excludes a protected class of workers may violate federal law, even if it is otherwise valid.

 Final Thought: Know Thyself

Perhaps the best advice was given by New York labor lawyer, John D. Rapoport, in a recent speech. He stated: “Are you smart enough to know that you have preferences?  Some would call these preferences prejudice. Your preferences are O.K., so long as you are aware of them and keep them out of the hiring process.” 

Michael P. Coyne is a founding partner of the law firm, Waldheger Coyne, located in Cleveland, Ohio. For more information on the firm, visit: www.healthlaw.com
or call 440-835-0600.