An Employer’s How-To Guide For Hiring
Hiring a new employee to work in a small business is a process fraught with legal issues. The federal government and most states have anti-discrimination laws in place protecting applicants and employees from hiring and employment decisions based on race, color, religion, national origin, sex, pregnancy, age, disability, union affiliation, or veteran status. (Some states also prohibit discrimination based on other categories, including sexual orientation, marital status, and arrest record.) Would be employers must comply with the law at every step of the hiring process.
In order to attract the most qualified applicants or employees, ads and job descriptions should avoid words that suggest the employer prefers applicants of a particular race, sex, religion, national origin, age, or their protected trait under the relevant state or local law. For example, an ad that employees the phrase “recent college graduate” instead of “college degree required” could imply a preference for young people and discourage older applicants from applying. Likewise, using the term “salesman” instead of “salesperson” could suggest that only men should apply.
Employers should also use care when deciding how to disseminate information about available jobs. The method an employer uses to get out the word about job openings can create problems if that method has the effect of foreclosing certain classes of applicants. Employers can avoid problems by disseminating news of job openings as widely as possible. Placing ads in newspapers and magazines with wide circulation bases and using employment agencies or state job-service divisions can help employers reach a wide variety of qualified applicants.
The Americans with Disabilities Act prohibits an employer from asking any questions relating to the applicant’s physical or mental health. Questions that seek such information either directly (such as “Do you have any health problems?”) or indirectly (such as “Have you ever filed a claim for workers’ compensation?”) are forbidden. Rather, employers should ask all applicants if they can perform the essential functions of the job. For example, if the job requires sitting down for eight hours a day, the application should ask whether the applicant is physically able to meet that requirement.
The National Labor Relations Act prohibits any questions about union membership or activities. For example, questions such as “Do you belong to a labor organization?” or “Have you ever participated in a strike?” are against the law.
Employers should take careful notes during interviews. Besides being helpful in defending hiring decisions if they’re challenged in the future, keeping accurate job-related interview notes improves the quality of the selection process. However, employers should only write notes that pertain to an applicant’s ability to perform the functions of a job.
Both federal and state laws regulate the ability of employers to request references and other information. Reference checks that unnecessarily request private information or use unreasonable methods to gather data may subject an employer to liability for invasion of privacy, though such liability is admittedly rare. As a rule, when conducting reference checks, employers should inquire only about issues relating to an individual’s past work performance.
Criteria That Can Get the Employer In Trouble
Examples of job criteria that have been found to discriminate against certain groups include:
- Height and weight standards (which may adversely impact women and members of certain ethnic groups).
- Fluency in the English language (which may adversely impact members of certain national-origin groups).
- Standards relating to arrest and conviction records (which may adversely impact members of certain racial and ethnic groups).
- Standards relating to history of garnishment (which may adversely impact member of certain racial and ethnic groups).
Remember, an employer can still make use of such criteria if it can show that the qualifications measured are necessary for successful performance of the job.