RECRUITING
The first aspect of the hiring process an employer should consider is
the manner in which applicants are made aware of vacancies in positions
at the business. Employers should be aware of certain issues when
developing or revising their recruiting process:
Informal hiring processes. Employers should be careful
to avoid exclusive hiring of employees through informal processes which
may bring in only those applicants who are similar to current
employees. This process may screen out qualified minority candidates
and could be construed as circumstantial evidence of race
discrimination. Courts have found that "word of mouth" advertising
techniques do, in fact, perpetuate racial imbalances in the workplace.1
Employers should utilize every reasonable and available means for
recruiting employees to avoid only word of mouth advertising practices.
Newspapers, trade magazines, computer networks and the local
unemployment office are a few ways for you to communicate information
concerning your business' vacancies. These methods will enable you to
recruit from the largest pool of applicants available for each vacant
position.
Advertisements. Every employer should advertise
vacancies as an Equal Employment Opportunity Employer, thereby
stressing the willingness of the business to consider applicants from
any person irrespective of the person's sex, age, race, national
origin, disability, religion or color. Employers can no longer state a
preference for one sex over another for casual positions, i.e., "men
wanted for labor" or "girl friday" advertisements. Employers should be
careful to ensure that all advertising language they use is
non-discriminatory and gender neutral. For example, phraseology such as
"patrolman" or "meter maid" should be replaced with generic terms such
as "patrol officer" or "meter reader."
Know the law. It is important that employers
understand federal, state and local law. Federal, state and local
discrimination statutes, affirmative action requirements and various
other laws (e.g., local laws restricting recruitment of strike
replacements during a strike) can impact on the recruiting process.
Employers should do the best they can to educate themselves in
employment law, but should consult a competent attorney in your state
when determining a course of action.
APPLICATIONS AND INTERVIEWS
The primary purpose of the interview process is to decide which
applicant is best qualified for a position. The most important thing to
remember when interviewing a potential employee is to ask only those
questions relevant to the position. This sounds simple enough but in
practice it is easy for the interviewer or an application to step over
the line and request improper information. An interviewer should study
the requirements of the job ahead of time, review the information
supplied by the applicant, prepare a list of questions to be asked of
the applicants prior to the interview, and then ask these questions
consistently of all applicants to ensure equal treatment during
interviews.
Whether you are preparing an application form or conducting an
interview, federal and state equal employment opportunity laws and
regulations apply, and forbid discrimination based on an individual's
race, sex, color, religion, national origin, age or disability. Some
states and municipalities prohibit discrimination against other
protected classes, and it is important to consult an attorney in your
state who is knowledgeable in employment law. Although federal statutes
may not directly prohibit certain questions, these inquiries may be
used as evidence of discrimination if an employer does not have a
legitimate business reason for requesting the information. Below are
questions which should be avoided in applications and interviews, tips
for clarifying the employment relationship at the beginning of the
hiring process, and suggestions for interviewers.
- Questions Which Are or May Be Discriminatory
Age.
Questions related to date of birth or age should not be asked as these
questions may indicate discrimination based on age.1 Questions
concerning whether a person is of legal age to perform the job,
however, are permissible. It should be noted that many applications
include questions such as what year an applicant attended or graduated
from school. These questions could be interpreted as a way of
determining the person's age and therefore discriminating against them
on the basis of their age.
Race/Color. Questions concerning an applicant's race,
color of hair, skin or eyes should not be asked as they tend to
indicate discrimination against the individual on the basis of their
race or color.2
Sex. Questions concerning the sex of an applicant should not be asked unless in the rare case if is necessary for the position.3
National origin. Questions concerning ancestry,
national origin, heritage, native language or nationality of parents or
spouse should not be asked as these tend to indicate a discriminatory
intent.4 However, questions concerning language ability may be relevant
if they are necessary to perform the job.
Religion. Religious beliefs are not relevant to an
applicant's ability to perform the job except in certain cases which
involve employment at a religious institution.5 Such questions
discriminate against a person on the basis of their religion.
Marital Status. Questions concerning whether an
applicant is married, single, separated, engaged, widowed, spouse's
name, maiden name or spouse's work should not be asked because they are
not relevant to a person's ability to perform a job and may be used for
or indicative of a discriminatory purpose.6 Some states and
municipalities have specifically identified marital status as a
protected category. In other cases the practice of asking such
questions has been found to be discriminatory on the basis of sex.
Pregnancy. Any questions concerning pregnancy, medical
history of pregnancy or whether an applicant has plans for a family
should not be asked because they are indicative of discrimination based
on sex and pregnancy.7 The U.S. Supreme Court has recently found that
an employer's fetal protection policies are unlawful as employers may
not bar women from jobs that may be hazardous to unborn children.8
Child care. Questions regarding ages of children and
child care arrangements should not be asked because they tend to impact
on women in a disproportionate manner. The U.S. Supreme Court has ruled
that in the absence of proof of business necessity, Title VII prohibits
an employer from having one hiring policy for women and another for men
- each having pre-school age children.9
Physical characteristics. Inquiries concerning
physical characteristics such as height and weight should be avoided
unless such information is job related. These questions tend to impact
on certain protected classes on the basis of sex or national origin.
Disabilities. Questions concerning a person's
disability, health condition, previous injuries or diseases, or days
absent due to illness cannot be asked during the initial interview of
an applicant. You may ask whether an applicant can perform the
essential functions of the job, with or without reasonable
accommodation. The Americans With Disabilities Act prohibits
discrimination on the basis of disability and regulates the hiring
process. This will be discussed in more detail in the next chapter.
Arrests and convictions. You should not ask whether a
person has ever been arrested or charged with a crime. Statistics show
that minorities are disproportionately arrested for suspicion. Thus,
these inquiries tend to impact on persons due to their race or color.
Courts have held that without proof of business necessity an employer's
use of arrest records to eliminate job applicants is unlawful
discrimination.10 The EEOC has found that the mere consideration of
arrest information should be avoided as it may inhibit minority
applicants from pursuing the job position.
"Ban the box" legislation is now in the majority of states and many cities around the U.S. The legislation varies depending on the jurisdiction but all employers should prepare for it. Generally it requires that employers not look at the criminal history of an applicant in the initial application process. It often limits when employers can ask about criminal history. In addition, the EEOC has issued guidelines that prevents employers from asking about criminal history in the initial application process. Employers should consult legal counsel to understand the laws in their jurisdiction, and they should make appropriate adjustments to their applications and interview process.
Inquiries into an applicant's conviction record may be lawful in your jurisdiction,
depending on the number of convictions, the nature of the convictions
and how long ago the actions occurred.11 Because "Ban the Box" legislation is becoming more prominent in the U.S., employers should consult legal counsel to understand the laws in their jurisdiction.
Military Record. Although questions concerning
military experience may be relevant, questions concerning the type of
military discharge an applicant received or whether the applicant was
disciplined while in the military are questions that should not be
asked due to their tendency to impact on minorities. Also, questions
concerning veteran status, military reserve or national guard should
also be avoided as these categories are protected from discrimination
by federal statute.12
Credit History. Inquiries into an individual's credit
history may tend to discriminate against women and minorities who have
in the past been denied credit opportunities. In addition, credit
history generally has no relevance to the job. For these reasons, it is
best to avoid such questions unless there is a legitimate business
necessity for such information.
Garnishment Records. Federal and state laws generally
prohibit discrimination based upon garnishment records. In addition,
the courts have ruled that employers violate Title VII by discharging
employees because their wages have been garnished. The courts have
based this conclusion on findings that persons of color suffer wage
garnishments substantially more often than do whites, and that wage
garnishments do not affect a worker's ability to perform work
effectively.13
References: Inquiries into references are appropriate,
but should not be used to solicit information that cannot be directly
obtained in the interview or application. It should be noted that if an
employer uses a third party to conduct background checks, the employer
should confirm that the third party complies with the laws against
discrimination including Title VII of the Civil Rights Act of 1964 and
the Americans with Disabilities Act of 1990. The third party is an
agent of the employer, and the employer is responsible for the actions
of its agents.
Organizations. Questions concerning organizations that
are job-related can be asked. However, clubs, social fraternities or
societies should not be asked as they could reveal whether an applicant
is a member of a certain protected class.
Photographs. Photographs should not be requested with
the application or after an interview as they may be used to
discriminate based on national origin or color. Photographs may be
required after hiring for identification purposes.
Other names. You should be careful in asking questions
concerning the names used by the applicant as this may impact more
severely on women and indicate discrimination based on national origin.
If you are concerned about finding the applicant's educational records
or past work experience as they may be under another name, then it
should be made clear the purpose for asking the question.
Weekend work. Questions concerning whether a person
can work on Saturday and Sunday should be avoided as such questions may
discriminate against persons of certain religions as they may be
prohibited from working on Saturday or Sunday. On the other hand, it
may be necessary to know whether an applicant can work on these days.
Title VII of the Civil Rights Act of 1964 prohibits religious
discrimination unless an employer demonstrates that it is unable to
reasonably accommodate the religious belief without undue hardship on
the business. If you do ask whether a person can work on the weekend,
you should indicate that you will reasonably accommodate religious
practices.
Citizenship. Questions concerning citizenship should
not be asked as they may indicate discrimination on the basis of
national origin. In addition, it is unlawful to discriminate against an
applicant based upon citizenship status under the Immigration Reform
and Control Act.14 It is better that employers ask whether the
applicant is legally authorized to work in the United States.
Salary history. In some jurisdictions it is a discriminatory employment practice for an employer to inquire about the salary history of an applicant for employment, which may include either asking the applicant directly about his or her salary history or conducting a search of publicly available records or reports. You should consult counsel in your jurisdiction before making such inquiries.
Bankruptcy. Section 525 of the Bankruptcy Code
provides that an employer may not discriminate in employment against a
person who has filed for bankruptcy, is in the process of doing so, or
intends to do so. Therefore, questions concerning bankruptcy, and even
the applicant's financial condition, should be avoided. Questions
concerning an applicant's financial condition may impact negatively on
certain protected classes.
CLARIFY THE EMPLOYMENT RELATIONSHIP
It is important for employers to clarify the nature of the employment
relationship from the very beginning. The doctrine of
employment-at-will has allowed employers to terminate an employee for
any reason. This doctrine has been significantly eroded by both
statutory and case law, and therefore, it is important for an employer
to clarify the nature of its relationship with employees at the
beginning of the hiring process. Below are a few items which should be
part of every pre-employment process:
EEO statement. An application form should contain an
affirmative statement that the company is an equal opportunity employer
and does not discriminate in hiring or in the terms and conditions of
employment on the basis of protected classifications.
Authorization to confirm information. Each applicant
should be asked to sign a statement authorizing the employer to contact
references and previous employers to confirm any information provided
in the application process. With such an authorization the employer
should also include a release from liability for soliciting such
information.
Duration of application. There should be a statement
in any application indicating that the application is not a guarantee
of employment and that it is only good for a short period of time - for
example sixty to ninety days. If someone wants to be considered after
that period expires, he or she will be required to complete a new
application.
"At-will" relationship. Any application form, employee
handbook, or similar document should recite that the employment is
at-will. Sample languages included in the sample application forms
following the next chapter.
SUGGESTIONS FOR INTERVIEWERS
- 1. Organize your questions prior to the interview - prepare a script.
2. Be a good listener.
3. Avoid the questions discussed above.
4. Ask only job-related questions.
5. Consistently apply questions to all applicants.
6. Know the law.
SOURCES
- Age Discrimination In
Employment Act, 29 U.S.C. §§ 621-634. The ADEA prohibits discrimination
on the basis of age against individuals who are forty years of age or
older. In some jurisdictions state law may prohibit discrimination on
the basis of age against individuals who are younger than forty years
of age.
- Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.
- Title
VII of the Civil Rights Act of 1964. There may be a few very limited
circumstances where sex is a bonafide occupational qualification
(BFOQ). An example is when a male or female is needed for a modeling
position. These questions should only be asked of persons applying for
that particular position.
- Title VII of the Civil Rights Act of 1964.
- Title VII of the Civil Rights Act of 1964.
- See
Sprogis v. United Airlines, 444 F.2d 1194 (7th Circuit 1971), where the
court found that the employer violated Title VII of the Civil Rights
Act of 1964 by refusing to permit a married woman to be a flight
attendant. The EEOC's guidelines on discrimination because of sex
express the same conclusion.
- Pregnancy Discrimination Act, 42 U.S.C. § 2000e (k).
- International
Union, United Auto., Aerospace and Agr. Implement Workers of America,
UAW v. Johnson Controls, Inc., 449 U.S. 187 (1991).
- Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971).
- See Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971); Gregory v. Litton, 472 F.2d 631 (9th Cir. 1972).
- See Green v. Missouri Pacific Railroad Company, 523 F.2d 1290 (8th Cir. 1975).
- -- 38 U.S.C. § 4301 et seq.
- See Johnson v. Pike Corporation of America, 322 F.Supp 490 (C.D.Cal. 1971).
- Immigration Reform and Control Act of 1986, 8 U.S.C. §1324a.
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10/17/2012
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Department of Labor Launches Toolkit for Workplace Flexibility Information
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10/05/2012
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$146,000 Settlement in Disability Discrimination Case Against Medical Facility, Training Ordered
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10/03/2012
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$188,500 Settlement in Sex Discrimination Lawsuit Against Wholesale Food Distributor
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08/15/2012
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$120,000 Settlement in Race Discrimination Lawsuit Against Trucking Delivery Company, Training Ordered
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06/26/2012
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$2 Million Settlement in Back Wages and Interest for Hiring Discrimination by Government Contractor
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05/24/2012
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EEOC Posts Information About Arrest and Conviction Records Guidance on Its Website
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05/23/2012
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Gasoline and Oil Distributor Settles Age Discrimination Lawsuit, Training Ordered
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05/17/2012
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$60,000 Settlement Against Employment Referral and Placement Company for Disability Discrimination, Training Ordered
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04/26/2012
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Commission Issues Updated Guidance on Employer Use of Arrest and Conviction in Employment Decisions
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04/24/2012
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EEOC to Hold Meeting on Wednesday, April 25
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03/07/2012
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The Department of Labor Has Published a Report on the African-American Labor Force in the Recovery
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02/27/2012
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Piggly Wiggly Stores in Tennessee Settle Race and Sex Discrimination Suit for $40,000, Training Ordered
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01/25/2012
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$158,000 In Back Wages and Penalties to be Paid by Custer State Park Resort for Wage and Hour and H-2B Visa Violations
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01/17/2012
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$219,000 Settlement in Racial Discrimination Against Defense Contractor
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11/18/2011
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$400,000 in Back Wages to Settle Hiring Discrimination Allegations Against Nishimoto Trading Co., Training Ordered
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09/01/2011
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$30,000 Settlement in Religious Discrimination Case, Training Ordered
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08/25/2011
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$215,000 Settlement in Sexual Harassment and Retaliation Lawsuit, Training Ordered
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07/13/2011
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$65,000 Penalty to City of Boone in Resolution of Age Discrimination Suit, Training Ordered
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07/11/2011
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Experts Tell EEOC that Disparate Treatment in Hiring Remains Problem
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07/01/2011
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Supreme Court: Arizona's "Legal Arizona Workers Act" Not Preempted by Federal Law
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06/01/2011
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Philadelphia Employers Must Modify Employment Application Under Criminal Record Law
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03/03/2011
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$700,000 Settlement in Discrimination Case Against InterCall
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03/01/2011
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Supreme Court Rules Background Checks on Government Contractors Do Not Violate Constitution
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02/22/2011
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$1.65 Million Settlement in Gender Bias Case
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01/03/2011
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Arizona Voters Pass Medical Marijuana Proposition; Employers Should Prepare to Comply
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11/23/2010
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BNSF Railway Settles Age Discrimination Lawsuit For $95,000
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11/19/2010
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Digital Cable and Communications South Settle Sex Discrimination Suit for $75,000
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10/29/2010
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New Service Will Guide Employers on How to Hire Veterans
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10/25/2010
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$560,000 Settlement with Tyson Refrigerated Processed Meats in Hiring Bias Case
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10/20/2010
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EEOC Public Meeting Explores the Use of Credit Histories as Employee Selection Criteria
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10/07/2010
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$495,000 Settlement with Coca-Cola Bottling Company Consolidated
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09/23/2010
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$130,000 Settlement - Dental Group Allegedly Discharged Workers Who Became Pregnant
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03/15/2010
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Les Schwab Tire Centers Agrees To Pay $2,000,000 To Settle Hiring Discrimination Case Involving Females
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02/09/2010
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ALJ Finds Bank of America Discriminated Against African-American Job Applicants
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12/31/2009
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Outback Steakhouse To Pay $19 Million For Sex Bias Against Women In 'Glass Ceiling' Suit By EEOC
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08/24/2009
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Test for Paul Recruiting
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08/20/2009
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Gerber Products Agrees to Pay $900,000 to Minorities and Females for Alleged Hiring Bias
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08/13/2009
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R-Anell Housing to Pay $200,000 to Settle EEOC Sex Bias Suit; Training Included as Part of Settlement
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