Hiring Practices - A Half Dozen Ways To Avoid Lawsuits

Hiring practices is a sensitive issue under todays civil rights laws. No business owner wants to be accused of discrimination. Some suggested procedures are presented to help the business owner avoid legal action.

Be Aware of the Law

Beginning in 1963, a series of federal laws have been passed prohibiting employment discrimination based on a variety of factors including race, color, religion, sex, age, disability and marital status. The list gets longer and more complicated and there are substantial penalties for violations. Some state laws are even more restrictive, which complicates the matter more. How, then, does an employer avoid risking lawsuits and fines, while still hiring qualified employees.

The law is not static. It keeps changing, so it makes sense to keep up to date. Your state human rights agency can provide inexpensive information and/or training, as can the federal Equal Employment Opportunities Commission (EEOC). You can also check with organizations such as the NAACP, the ACLU and local law schools. If you own a larger company you may want to purchase legal reference books that are updated periodically. (Matthew Bender, West Publishing and CCH offer such material.) As your company grows, a lawyer who specializes in employment law should be retained or hired.

Know the Job

The Americans with Disabilities Act (ADA) describes "core components" as those parts of a job which are absolutely essential. They are not always what you think, so it is worthwhile to brainstorm with other managers and with workers who actually have done the job to be sure your descriptions are accurate.

For instance, the job description for years may have read "must be able to lift up to 40 lbs." However, the actual job,may involve moving boxes from the shipping area to the office, which could be accomplished with a hand truck, or by some other method. If , in fact, the boxes contain paper for computer printouts and only need to be fetched twice a week, it may not even be a "core component" of the job.

Diverse Recruitment

The next step involves recruiting and possibly testing for the job. Many companies simply hire friend of their current employees. This will NOT diversify your workforce, for it is a fact that we tend to associate with people who are like us. Therefore, if your workforce is primarily from one ethnic group, then their friends probably are from the same group. Advertise in small local papers, as well as larger ones. Contact colleges, training schools and trade schools. Call your state job service and, depending on budget, utilize other media such as radio, TV and the internet.

Write your ad utilizing your new job description and be careful not to specify any gender, age or other preference. It is illegal to discriminate in advertising, so you may even want to have several people read it over. People of different ethnic backgrounds may be offended by words or phrases that would not bother someone else.

Check your personnel offices. Are they accessible to all people, including those with disabilities. Is there a ramp into the building? Are the elevator buttons marked in Braille? You can obtain free information from the EEOC either by phone or online to help you out with this.

If testing is to be done, make sure the test sites are also equally accessible and that the tests themselves are not discriminatory. It is probably best to purchase testing services, as they have the facilities to check and recheck and may also reduce or eliminate your liability. Medical testing should be left until after hiring, as most results can not be used as a basis for not hiring anyway. The exception to this is drug testing. If you require drug tests, you must test all candidates for the position and not just selected one(s). That way no one can say that you tested him or her because of their race, sexual orientation or any other illegal factor.

Deciding who to interview is critical too. Did you ask them to send a resume, a driving record or certificate of some type? Eliminate all candidates who did not do so. If the job requires language skills or proofreading, eliminate those who had major errors in the application or letter. Is the application reasonably neat? Next, if there was testing, eliminate those who failed either formal tests or drug testing. This should leave a small pile left. Now you need to be a little bit subjective, as you do not want to interview 50 people. Search for those that mention specific job skills that you have requested. Pick the top candidates (no more than 10) based on the number of skills that you have requested. Keep the others that are not eliminated on file for future jobs.

Plan the Interview

Interviewers should be carefully trained. This is probably the one area where candidates can most easily claim there was discrimination. It is usually best to have two people interview together. Doing so will make it easier to resolve any questions about what was said. In fact, I usually recommend to clients that one of the interviewers be either the incumbent or the supervisor for the position because they are most likely to know exactly what qualifications are needed.

The interviewer will, should avoid comment on any issues that may be discriminatory. "Gee, we've never had an Hispanic person here before.?" or "Who will babysit the children while you are at work?" or "I see you are 52, were you planning on taking early retirement?" are all invitations to a lawsuit. So are more subtle versions of the same kinds of questions. So how do you hire a candidate who is going to be able to do the job?

This is where you go back to your written job description. You will use it to develop a list of interview questions which will be asked of every candidate. As you interview, you can write notes about their answers to the questions which will later be used to help determine who will get the job. Questions should be about specific job skills. "This job requires a great deal of typing, Mr. Jones, how fast can you type? Can you tell us how much of your time was spent typing at your last job?" Or questions like "Ms Smith, Have you ever used a drill press?" "Mr Doe, do you have a CDL license?"

You may also use questions to find out about the candidate's feelings. These should also be job or business related "Tell us about the best job you ever had." "Why was it your favorite?" "Why do you want to work for my company?"

Print out a list of the questions for each interviewer. Once everyone has seen the questions and, perhaps even practiced them, you are ready to meet your prospective employees.

After greeting your candidate and introducing your co-interviewers, it may be wise to hand everyone a copy of the job description. Allow time to read it over. Describe the hours of work and the business of the company. Then ask if they think they will be able to do the job with or without any kind of accommodation. (If you ask every candidate the question just this way, there is less room for claims of disability discrimination.) Ask each candidate every one of the questions in the same order. Let the candidate answer and do not interrupt. Interviewers can make notes and can ask for clarification of answers but should not ask any additional questions. You may ask the candidate if she or he has any questions and answer them as honestly as possible without discussion of any "issues." Do not be drawn into discussions about race, gender, disability or other such problems. Simply let them know that you are an equal opportunity employer and that the hiring decisions will be made only on the basis of ability to do the job.


Finally, you get to hire someone! Don't think that, having taken all the previous steps, you are now immune. Nor, is it a good idea to throw the papers up in the air and hire the first one to land on the chair. Each candidate should now have a packet of papers in a file. Put your interview notes on top. Looking them over, determine which candidates have the best job skills based on the questions you asked. Discuss it with the other interviewer(s). If a decision can not be made, you may then compare the resumes along with the interview questions. It is probable that you will all come up with at least three of the same people in your top four list. Usually the decision is made at this point. If not, you can have a second round of interviews with the top three or four, using the same methods of designing questions and interviewing.

Even after you have hired someone, you will want to keep all of your papers on file. Although you have tried very hard not to discriminate, there is still the possibility that someone will commence legal action.. Your papers will aid in proving that you did not discriminate against any applicant. All of this sounds much harder than it is. Once in effect, such processes will gain your company a reputation for fairness in hiring. That is always an asset in locating good employees.

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