Before the Interview
Employers bear a responsibility to hire without regard to certain characteristics when recruiting new talent. From the time you post an ad for an open position, you must avoid stating or even implying any preference for or aversion to certain types of people. As an example, the statement ‘great job for students’ might be intended to connote short hours or modest pay rate, but it can be interpreted as a preference toward younger applicants.
Questions to Avoid
Whether you’re having a casual conversation with a potential hire or engaged in a formal interview, it’s important as an employer always to steer clear of certain non-work subjects. In addition to the subjects of age, race and religion, you are usually not permitted to inquire about an applicant’s marital or family status, sexual orientation, gender, birthplace, citizenship, or to ask questions regarding any potential disabilities.
Bear in mind that as with job advertisements, questions need not be overt in order to potentially violate anti-discrimination laws. For instance, asking someone their date of birth or what year they graduated from high school is, in effect, inquiring about their age. Similarly, you might be permitted to ask if an applicant speaks fluent English as a matter of qualification, but not whether English is his or her first language.
In some situations, it is legally acceptable to probe for information that ordinarily falls under protected classifications. If there is deemed to be a bona fide occupational qualification, or BFOQ, then employers may be allowed to state requirements that would otherwise be considered discrimination. There are several instances where this type of exception might be permitted.
For example, creators of women’s apparel might legally be allowed to publish an ad seeking female models as a matter of displaying the merchandise properly. In another instance, a commercial airline could be permitted to institute mandatory retirement by proving that pilots statistically performed less effectively after a certain age, thereby compromising passenger safety. In any case, it is advisable to consult a qualified employment attorney if you are not absolutely certain that a BFOQ will pass the litmus test.
Many employers will seek out further information about an applicant through various means, such as background checks. Depending on the state you are doing business in, certain details may be considered out of bounds. Criminal records, as one example, are accessible in some states with an individual’s prior consent; in other states, they cannot be reviewed unless a legitimate work need is evidenced.
An applicant can also typically consent to a review of his or her educational transcripts, but many other records are deemed confidential in a majority of situations. Such information can include credit and bankruptcy history, workers’ compensation data, military records and personal medical information.
As talent recruiting becomes more advanced, many companies are starting to rely on various manners of pre-employment tests to evaluate applicants. These examinations may be skill-oriented, such as typing or math tests for workers in accounting or finance sectors. Many organizations also prefer to screen prospective hires for illegal drug use before extending job offers.
Once again, it’s important to remember that more involved tests, such as those that evaluate personality or psychological traits, can potentially delve into subject matter that’s considered off-limits. Just as with conversations and interviews, you must be keen to avoid presenting any illegal employment questions.
In addition to avoiding the wrong questions, it’s important that employers be aware of their obligations and responsibilities throughout the hiring process. Always take care when making claims or promises to an incoming employee, as failure to follow through can be considered a breach of implied contract. Such claims might relate to rate of pay, expected increases or job duration, among other factors.
Overall, the hiring process does present many complexities and obligations for you as an employer, but none that should ultimately hinder your effort to seek out the best workers. Take the time to review anti-discrimination laws and the classes they protect, and be sure to carefully word any advertisements, comments or interview questions to avoid the many pitfalls that exist for owners and hiring managers.
The content on our website is only meant to provide general information and is not legal advice. We make our best efforts to make sure the information is accurate, but we cannot guarantee it. Do not rely on the content as legal advice. For assistance with legal problems or for a legal inquiry please contact you attorney.