Wise Moves:Prudent hiring practices that will keep you and

your company out of hot water

How discrimination laws affect your hiring practices

. . .

Cost of litigation

2000 2001 2002 2003 2004 2005

$49.8 $51.2 $52.8 $148.7 $168.1 $107.7

Amounts awarded in discrimination suits brought by the EEOC in millions:

Recent Class initiatives

Discrimination in Hiring

• Pregnancy discrimination is unlawful

• National origin discrimination includes: size and language requirements

• Duty to accommodate religious practices begins with the interview

Golden Rule of Interviewing

• Keep a job description handy

• Make a checklist of essential functions of the job

If it’s not a skill, don’t grill!

The Law in Action

The following are some possible interview questions. Should you ask them?

The Law in Action

Where were you born?

The Law in Action

No. Doesn’t relate to a job skill.

Better Question:

• Are you legally allowed to work in the United States?

The Law in Action

When did you graduate?

The Law in Action

No. You may not refuse to hire applicants because they are age 40 or over.

Better Questions:

• Do you have a high school diploma or college degree?

• Are you 18 or older?

The Law in Action

Do you have a babysitter available if we need you on a weekend?

The Law in Action

No. Will likely affect more women than men.

Better Questions:

• What days can you work?

• What hours can you work?

• These are the hours for this job, can you work them?

The Law in Action

What languages do you speak or write fluently?

The Law in Action

Ok if the job requires someone who speaks more than one language.

Do not ask:

• What is your native language?

The Law in Action

How much do you weigh?

The Law in Action

Not unless it is really necessary for the job.

• Weight and height requirements tend to rule out women and some minorities

Disability Discrimination • Substantial limitation in ability to care for

oneself, perform manual tasks, walk, see, hear, speak, breathe, learn or work

• Duty to provide reasonable accommodation

The Law in Action

A trucking company conducts job interviews in a second floor office. There is no

elevator. The company calls Tonya to arrange for an interview for a secretarial

position. She requests access to an elevator because she uses a wheelchair.

Must the trucking company install an elevator to accommodate Tonya?

The Law in Action

No.

• Undue hardship

• Consider alternatives

The Law in Action

Can you perform the essential functions of this job with or without accommodation?

Possible interview question:

Can you ask it?

The Law in Action

Yes.

Do not ask:• Which is it – with or without accommodation?• Do you need reasonable accommodation to

perform this job?

The Law in ActionBob is deaf and applies for a file clerk

position. The essential functions of this job are to file and retrieve written materials. While the job description states that the

clerk must also answer the phone, in practice the clerk rarely does this because other employees have responsibility for this

duty.

Can Widget Co. reject Bob solely because he can’t answer the phone?

The Law in Action

No.

Answering the phone is not an essential part of performing this job.

The Law in ActionMiller, Bryson and Calabrese, PLLC, a local law firm, wants a PT employee to run the file room.

They think a grandmotherly/grandfatherly person would be best because it would be comforting to

frantic associates who can’t find the files they need. They place this ad in the local paper:

Supplement your pension! Work PT as a file clerk!

Is this ad ok?

The Law in Action• No.

• “Supplement your pension” is a red flag phrase.

• Cannot discriminate against anyone 40 or over – even in favor of someone else who is 40 or over – because of age.

The Law in Action

Miller, Bryson and Calabrese, PLLC knows that it can’t out-and-out say it wants a grandmotherly/grandfatherly file clerk.

However, it’s made up of clever and sneaky lawyers; so, instead of stating an age

preference, it chooses to run only one ad

– in the AARP magazine.

Is this ok?

The Law in Action

• No.

• Placing help-wanted ads in publications that only market to a certain group of the population can be a discriminatory practice.

Fair Credit Reporting Act• Before getting the report:

– Written notice – Written consent

• Before taking adverse action:– Copy of the report– Written copy of rights under FCRA

• After taking adverse action:– Notice of the action taken– Credit bureau contact information – Notice that credit bureau did not make the decision– Notice of right to free credit report within 60 days– Notice of right to dispute accuracy

Negligent Hiring

• Knew or reasonably should have known applicant was unfit for the job

• Placement of applicant in that job created an unreasonable and foreseeable risk of harm to third parties

Negligent Hiring

YOU have the duty to use ordinary care in your hiring practices to avoid creating a

foreseeable and unreasonable risk of harm

• Verify information on applications• Carefully interview applicants• Consider the job environment

Social MediaAccording to media reports:

- 92% of employers use or plan to use social

networks for recruiting in the coming year.

- Most recruiters use social networks to discover

talent:

93% use LinkedIn 66% use Facebook 54% use Twitter

Social MediaInformation that may be accessible:

- illicit drug use

- alcohol consumption

- sexual activity or preferences

- juvenile behavior

- pregnancy

- lawsuits/workers’ compensation claims

- protected concerted activity

- good/poor communication skills

- volunteerism

Social Media

The Risks Include

- Discrimination laws

- Off duty activities/right to privacy

Social MediaIf you use these sources

o Standardize the process/adopt a policy

o Train the persons in question

o Limit access to the information to a delegated person/entity who/that will screen information

o Document search/hiring methods

o Honor privacy settings