Joshua S. Thompson is an attorney with the Birmingham, Ala., law firm of Scott Dukes & Geisler, P.C., where he represents businesses in the defense of employment law claims. For more information, visit www.scottdukeslaw.com.
Protect yourself from discrimination claims when building your team.
If an employer does not comply with applicable laws, the hiring process can expose a business to potential liability in the form of employment-related legal claims. Avoiding some of the more common mistakes during the hiring process, like discrimination and inappropriate inquiry claims, can help owners and managers steer clear of legal pitfalls when adding a new member to the team.
A successful hiring process starts with a clear job description, which should include job duties and qualifications. Creating a job description can help hiring managers determine the skills that a position will ultimately demand of a future employee. A good job description creates an objective legal basis that decreases the risk of discrimination claims, while a poorly-worded job description can lead to claims of disability discrimination.
An employer is entitled to set a job’s key functions, but the job description should not automatically disqualify individuals with disabilities. For example, while it is acceptable to mention legitimate physical requirements for a job (such as lifting and standing requirements or the ability to operate certain machinery), the job description should not require applicants to be “able-bodied” or exclude reasonable accommodation for an individual with a disability. In short, the job description should focus on only the job’s requirements, not the applicant’s individual characteristics.
Unsuccessful applicants can cause legal headaches for employers when job applications ask the wrong questions. Employers should review their applications to ensure that applicants are not asked to provide their race, gender, national origin, religion, disabilities or military discharge status. Unless the job carries a legally-mandated minimum age requirement, applicants should not be asked to disclose their age, date of birth or the dates they attended high school or college. While employers can ask if an applicant is legally qualified to work in the United States, the application should not ask applicants to disclose their citizenship status.
According to the Equal Employment Opportunity Commission (EEOC), employers should avoid inquiries about arrest or conviction records. While employers can consider criminal history later in the hiring process, the EEOC recommends certain steps to stay compliant with federal discrimination laws. Employers may not exclude an employee based on an arrest alone; however, the conduct underlying the arrest can be considered when it disqualifies the individual. For example, inquiring about a fraud conviction is relevant in evaluating candidates for a business manager position.
Hiring managers should only perform criminal background checks on finalists and only after receiving authorization. If the background check reveals any excluding convictions, the applicant should be allowed to explain the conviction. Regardless of the EEOC, some industries may be subject to federal regulations that prevent individuals with criminal records from being hired or certified. Business owners should research the positions within their individual companies to see how the hiring process may be affected by these federal requirements.
As with the job application, employers should avoid legally inappropriate questions during interviews. While interviews will reveal obvious characteristics about applicants, such as their race and age, interviewers should not record these characteristics in their notes. Interviews do not give hiring managers a license to ask questions unrelated to the position’s skills and qualifications. Unacceptable topics include marital status, children or plans to have children, national origin or citizenship status and religion or church attendance.
Disability-related questions, including questions about an applicant’s prior workers’ compensation history or number of sick days utilized, could pose additional problems. Employers can ask about an applicant’s ability to perform specific job functions with or without reasonable accommodations, as long as they ask the same question to all applicants. After making a job offer, an employer should tailor any disability-related questions or medical examinations to the job’s classifications, not the individual candidates. A job offer may be withdrawn on the basis of a disability only if the person cannot perform the essential functions of the job even with a reasonable accommodation.
The Hiring Decision
In order to find the most qualified applicant for a position, employers should base hiring decisions on legitimate, non-discriminatory considerations. They should be able to justify their hiring decisions in the event that an unsuccessful applicant alleges discriminatory failure to hire. Ideally, the decision should be based on both objective considerations (i.e., experience and education) and subjective criteria (i.e., interview performance). By keeping records of applications and interview notes, the employer will be in a better position to defend against potential claims of discrimination. While disgruntled applicants may always elect to pursue legal claims, a hiring process focused on job duties and qualifications will likely leave an employer on solid legal footing.