Training

Download the Manager's Guide to Hiring the Legal Way

Once you've downloaded the above PowerPoint file, use the accompanying script below when delivering your training to managers. Or you can download the file here and edit as necessary to fit your company. 

Welcome to The Manager’s Guide to Hiring the Legal Way

Hiring is one of the most important duties managers have. Handled the right way, it helps build great teams staffed with people who have the skill, ability and experience we need to serve our customers and meet our business and performance objectives.

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However, hiring is one of the most difficult and legally dangerous tasks for managers. A few ill-timed words in a want ad or interview can trigger legal liability. The main problem is that something a hiring manager says or does may make a job applicant think he or she is being discriminated against.

When that happens, the applicant is very likely to file a lawsuit. Even if it turns out that no discrimination actually occurred, defending against such a lawsuit is expensive and time-consuming. But if a judge or jury decides there was discrimination, the company could wind up owing hundreds of thousands of dollars.

Each year, employers pay out hundreds of millions of dollars to settle discrimination lawsuits.

Today we are going to look at how to handle the hiring process without violating the law and winding up in court.

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We have three learning objectives. After you complete this training, you should be able to:

1. Identify the anti-discrimination laws that apply to the hiring process.
2. Identify the stages in the hiring process with the highest risk of triggering legal liability.
3. Identify 25 off-limits interview questions

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Anti-discrimination laws

There are several major federal laws that prohibit discrimination during the hiring process:

• Title VII of the Civil Rights Act of 1964
• Age Discrimination in Employment Act
• Americans with Disabilities Act
• Pregnancy Discrimination Act, Pregnant Workers Fairness Act
• Uniformed Services Employment and Reemployment Rights Act.

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Title VII of the Civil Rights Act of 1964 is the most sweeping anti-discrimination law. It prohibits employment discrimination on the basis of:

• Race
• Color
• Religion
• This isn’t just about men discriminating against women. The federal government and the Supreme Court also consider discrimination against gay and transgender people to be forms of sex discrimination under Title VII.
• National origin.

Title VII prohibits discrimination against members of those protected classes, but it also prohibits bias in favor of them. For example, it is just as illegal to prefer hiring Christian applicants as it is to refuse to hire Muslims.

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The Age Discrimination in Employment Act prohibits discrimination against job applicants age 40 and older.

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The Americans with Disabilities Act:

• Prohibits discrimination against applicants with physical or mental disabilities
• Requires employers to reasonably accommodate disabled job applicants. That means providing them with assistance such as a sign-language interpreter in order for them to apply for or interview for a job.

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The Pregnancy Discrimination Act makes it illegal to discriminate against an applicant because she is pregnant. The Pregnant Workers Fairness Act requires employers to accommodate pregnant job applicants during the hiring process.

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The Uniformed Services Employment and Reemployment Rights Act makes it illegal to discriminate against a job applicant because he or she is a member of the armed forces, including the National Guard and the military reserves.

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Stages in the hiring process

Moving through the different phases of the hiring process, there are lots of ways to trigger discrimination complaints and lawsuit. Those phases and processes include:

• Advertising the job
• Deciding who to interview
• Conducting job interviews
• Checking references

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Advertising the job

A help-wanted ad that directly or indirectly states a preference for applicants based on gender, age or other protected characteristic is generally unlawful.

If you participate in drafting employment ads, list only the necessary job-related skills and qualifications—for example, “must be able to lift 50 lbs.”—rather than assumptions about who can perform the functions of the position—such as “male furniture-mover wanted.”

There are a few exceptions to this general rule, such as when a “protected” characteristic is a bona fide occupational qualification for the job—for example, when hiring a woman to work in a women’s locker room. However, those exceptions are extremely rare.

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See if you can recognize the three problems with the following ad:

Waiters/busboys. Looking for energetic, recent H.S. grad to work midnight shift at 24-hour restaurant. Great potential for growth. Apply in person or via mail to Ms. Willis, 100 Columbia Way.

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The three mistakes

1. Using age as job-selection criterion (“recent H.S. grad”) violates the Age Discrimination in Employment Act.
2. The terms “waiter” and “busboy” are not gender neutral and could be viewed as discriminatory.
3. Requiring a high school diploma may be seen as discriminatory because it could be argued that a diploma is not a bona fide occupational qualification for this job.

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The best job advertisements are based on good job descriptions.

At a minimum, a good job description will include these elements:

• Job title
• Essential duties
• Necessary skills
• Experience required
• Education, credentials required
• Results expected.

Together, they form the basis of an employment ad that won’t trigger a discrimination complaint.

The key: A job ad that focuses on the qualifications you are seeking, not the protected characteristics of the people who might apply.

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When you need to fill a position on your team, please reach out to HR! We can help you write an ad that will attract qualified candidates without violating anti-discrimination laws.

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Deciding who to interview

As you screen job applications and review resumes, you may be tempted to draw conclusions about candidates based on your assumptions. Don’t do it. For example, deciding not to interview someone based on any of these data points amounts to discrimination:

An unusual name: Do not base any decisions on an applicant’s “ethnic-sounding” name.

Address: Don’t draw conclusions about whether to interview someone because they come from a neighborhood with a bad reputation for crime. Don’t decide not to interview someone because you think their commute might take too long. You can’t conclude anything about an applicant’s suitability for a job just because of where they live.

Gender: Making any decision on the basis of an applicant’s sex is almost certain to trigger a discrimination lawsuit if the applicant discovers it.

Age: It’s often easy to figure out how old someone is based just on the information contained in a job application or on a resume—for example, dates of birth or when they graduated from high school or college, or even from dates of previous employment. Never make any kind of screening decision based on how old you believe an applicant might be.

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You may be tempted to run a Google search on applicants or try to look them up on social media. According to one recent survey, 70% of employers check job applicants’ social media accounts at some point during the hir­ing process. If not done properly it could be a big lawsuit risk. Several states have laws that limit what online information potential employers can seek and how they can use it.

Another problem: Social media may reveal the applicant’s membership in a protected group.

If you feel the need to search for online information about applicants, please contact HR.

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Conducting job interviews

Poorly conducted job interviews trigger many of the most expensive employment discrimination lawsuits. Because so much information about candidates protected characteristics—such as their race, age and national origin—becomes obvious when you meet someone face to face or during a video interview, you must take extra care not to ask questions or make comments that can be construed as discriminatory.

The best way to avoid problems is to ask every candidate the same questions during job interviews. Make sure your questions request only job-related information that will help you decide who will best be able to perform the job. Stick to questions that assess a candidate’s skills, ability or qualifications.

As you conduct the interview, keep accurate notes on how they responded to each question. Those notes should be the basis for comparing and contrasting the candidates’ qualifications and deciding who to hire.

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Some interview questions are strictly off-limits. Avoid questions that may trigger stereotypical assumptions about protected class status, such as:

• Marital status: Are you married? Is that your maiden or married name?
• Age: How old are you? When did you graduate from high school?
• Disability: Do you have any disabilities that would impair your ability to work? How often were you out sick in your last job?
• Religion: Which church or synagogue do you attend? What religious holidays do you observe?
• Gender/sex: Are you pregnant? What will you do with your children while you are at work?
• National origin/race: Where were you born?

Stick to questions that assess a candidate’s skills, ability or qualifications.

We’ll cover more on this topic in a few minutes.

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Checking references

Contacting an applicant’s former employers is an essential step in the screening process.  Most employers seek two types of information from professional references:

• Professional data: verification of dates of employment with last employer, job title, salary, performance evaluation and attendance.
• Personal data: verification of academic credentials, driving records (if relevant) and others.

Keep in mind that you should not ask a reference any questions you are prohibited from asking an applicant. Restrict your inquiry to job-related issues.

You must also check information furnished by all candidates without discrimination against any group. Many companies have been snagged for making cursory checks of white applicants but probing more deeply in the case of other protected classes.

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25 off-limits interview questions

Job interviews present a minefield of legal problems. One wrong question could spark a discrimination lawsuit. That’s why you should never “wing it” during interviews. Instead, create a list of interview questions and make sure every question asks for job-related information that will help in the selection process.

Every question you ask should somehow relate to this central theme: “How are you qualified to perform the job you are applying for?” Managers usually land in trouble when they ask for information that’s irrelevant to a candidate’s ability to do the job.

To avoid the appearance of discrimination during interviews, do not ask the following 25 questions:

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1. Are you married? Divorced?
2. Do you plan to get married?
3. If you’re single, are you living with anyone?
4. Do you intend to start a family?
5. Do you have children? If so, how many and how old are they?

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6. What are your day care plans?
7. Are you comfortable supervising men?
8. What would you do if your husband were transferred?
9. Do you think you could perform the job as well as a man?
10. Are you likely to take time off under the Family and Medical Leave Act?

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11. How old are you?
12. What church do you attend?
13. Do you belong to any social or political groups?
14. Do you have any debts?
15. Do you own or rent your home?

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16. How much and what kinds of insurance do you have?
17. Do you suffer from an illness or disability?
18. Have you had a major illness recently?
19. Have you ever had or been treated for any of these conditions or diseases? (followed by a checklist)
20. Have you been hospitalized? What for?

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21. Have you ever been treated by a psychiatrist or psychologist?
22. How many days of work did you miss last year because of illness?
23. Do you have any impairments that might affect your performance in this job?
24. Are you taking any prescription drugs?
25. Have you ever been treated for drug addiction or alcoholism?

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Hire education: 5 smart do’s and don'ts

Despite the complexity and legal risks of the hiring process, the best advice for managers can be captured in a few fairly simple rules:

• Do draft job descriptions that accurately describe the positions and list the “essential functions.”
• Don’t use advertisements that directly or indirectly express a preference for (or exclude) a person of a particular protected class status (age, sex, race, religion, disability status, etc.).

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• Do ask interview questions that relate only to an applicant’s ability to perform essential functions of the job. Again, avoid protected characteristics.
• Don’t ask questions that may trigger stereotypical assumptions about applicants’ characteristics.
• Don’t consider an applicant’s protected class status when making hiring decisions.

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What’s next?

The next time you need to hire someone for your team, remember these guidelines. And please do reach out to HR. We can help you hire without triggering a discrimination lawsuit.