According to the Equal Employment Opportunity Commission’s Enforcement and Litigation Statistics page, more than 13,500 hiring discrimination charges were filed against employers in fiscal year 2013.
We doubt the majority of those 13,500 employers were knowingly discriminating against potential hires. In this day and age, most employers are familiar with discrimination law and the wrath of the EEOC, the department that enforces these employment laws. So what gives?
Recruiting and hiring can be tricky business. (The EEOC is even cracking down on social media use, which we’ll address in a later post in this series.) In order to make good hiring decisions, you must get to know your applicants. But friendly, well-intentioned conversation can inadvertently veer into dangerous territory. You may not even realize it until a runner-up applicant files a claim.
Below we discuss some recruiting and hiring tips that can help your business avoid hiring discrimination lawsuits. First, we’ll look at some questions to avoid during interviews. Then we’ll examine some ways to avoid discrimination suits related to your job postings and pre-assessment tests.
Small Business Dos and Don’ts: The Interview
As we mentioned earlier, most employers are already aware of the types of questions that should not be asked in interviews, such as “How old are you?” and “Where do you go to church?” But as syndicated business writer Jennie Wong points out in this Charlotte Observer article, ice-breakers and small talk can lead to questions that could implicate you in a hiring discrimination case. Below, we summarize her advice:
Don’t Ask: “When did you graduate?”
When employees answer this question, they are essentially revealing their age – something that can be used against you in an age discrimination case. Wong points out that the EEOC enforces laws that prohibit discrimination against applicants who are 40 years of age and older. Additionally, some states have laws that address younger workers’ rights.
Do: Plan your “ice breakers” ahead of time. Instead of relying on graduation particulars to break the ice, write down a few questions that you know are unlikely to provoke answers that contain sensitive information (i.e., facts about age, race, religion, etc.). Wong recommends: “Did you have any problems finding the place?”
Don’t Ask: “Where are you from?”
Wong points out that many hiring managers start with a question like “Can you tell me a bit about yourself?” in order to ease an applicant into the interview. But this question can easily get off track and seemingly innocent follow up questions can imply that you are fishing for something more – like an applicant’s national origin. (For more on EEOC laws, check out our post “Employment Practices Liability Issues for Employment Agencies.”)
Do: Prepare a solid introduction. Wong suggests that one good way to start off an interview is by outlining the course of the interview. You can calm an applicant’s nerves by letting them know the kind of questions they can expect, how long the interview will last, and whether the applicant will meet with other parties.
Don’t Ask: “Do you have any kids?”
Wong points out that an employer might ask this question in response to an applicant’s comment about a family photo on the desk. But questions like this can prompt sex discrimination claims if asked in a hiring context.
Do: Stick to questions that reveal skills relevant to the position. If an applicant compliments a photo of your child, be cordial and thank the applicant. But swiftly transition the conversation back to the topic at hand: the job. Try: “My kids have taught me a thing or two about time management, which is a skill this position demands. Can you tell me about the tools you use to effectively manage your time?”
Small Business Dos and Don’ts: Job Positing
Preventing EEOC claims doesn’t begin or end with your business’s hiring practices. In fact, risk mitigation should begin with the job posting itself. Here are a few tips from the U.S. Department of Justice’s Best Practices for Job Postings flyer:
- Do: Realize that unless “required by law, regulation, executive order, government contract, or determination by the Attorney General,” you should treat all applicants the same, no matter their citizenship status or national origin.
- Don’t: Use discriminatory language in job postings. This includes phrases such as “only U.S. citizens,” “citizenship requirement,” “H-1Bs only,” “must have a green card / U.S. Passport,” “1-9 qualifying identification required at time of application,” and more.
- Do: Understand that U.S. citizens aren’t the only group of people authorized to work in the United States. Many classes of workers are authorized to work in the U.S., including foreign nationals (e.g., temporary non-immigrant workers and permanent immigrant workers), non-citizen nationals of the U.S (someone who is born in American Samoa and Swains Island), refugees, and other lawful permanent residents.
- Don’t: Include language in a positing related to an applicant’s national origin unless it is absolutely “necessary to perform the job effectively.” For example, language fluency requirements should be omitted.
- Do: Review legal support (law, regulation, government contract, etc.) if you think your position may require U.S. citizen status.
For more tips, read the full best practices list on the Department of Justice’s website.
Small Business Dos and Don’ts: Pre-Assessment Tests
There’s no doubt that pre-assessment tests can be a useful tool in determining who is the best candidate for a job. But employers must be careful that their use of such tests cannot be construed as discriminatory, especially toward disabled applicants.
Below we highlight some of the steps from the Small Business Chronicle’s “What Must Be Done to Ensure That Assessments Are Non-Discriminatory?” to help you avoid disability discrimination lawsuits:
- Do: Read the Disability Discrimination Act. This document outlines what must be done to make sure pre-assessment tests properly accommodate disabled candidates.
- Don’t: Forget to define the term “disability” to prospective applicants. Some conditions – such as arthritis or dyslexia – may not be viewed as a “disability” to all applicants. However, you should be upfront about all the psychological and medical conditions that “may affect pre-employment screening and job performance.”
- Do: Describe the exact duties and responsibilities of your open position. As you know, certain jobs simply cannot be performed by workers with certain disabilities, even when adjustments are made. You can avoid discrimination claims by openly communicating job and testing requirements in your listing.
- Don’t: Neglect to make adjustments to your pre-assessment tests so that all applicants can compete fairly. Once an applicant makes it to the testing stage, be sure to ask if they require any adjustments (e.g., a sign language interpreter) in order to preform to the best of their ability. Then, of course, be sure to make those adjustments.
- Do: Document your non-discrimination policy. After you take on a new hire, make sure to give them a document that explains your business’s non-discrimination policy. Have them sign the document and file it with your other employee records.
Unfortunately, you may not be able to prevent all employment lawsuits from happening. That’s why small-business owners should consider carrying an insurance policy that helps pay for these types of lawsuits: Employment Practices Liability Insurance (EPLI). This policy helps you pay for expenses such as attorney’s fees, judgments, and settlements. EPLI is a type of Professional Liability Insurance, but it isn’t included in your standard E&O policy. However, you can add it to your plan.
This post is part of an ongoing series on Employment Practices Liability Insurance, the high cost of employment discrimination lawsuits, and EEOC laws. Stay tuned for more on what can go wrong when hiring (and firing) employees.