Hiring Best Practices to Avoid Potential Discrimination Claims

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Troutman Pepper

[author: Shirley Akrasih]

Q. My company wants to improve our hiring process to help avoid costly errors that may lead to potential discrimination claims. What best hiring practices do you recommend?

A. Hiring new employees — whether high school and college students looking for part-time work or recent graduates entering the workforce — can be challenging. One possible risk is that a job applicant could claim unlawful discrimination based on your decision not to hire that applicant, even if the claim is not valid. We offer the following helpful tips to consider as you conduct the hiring process:

1. Craft a detailed job description

Having a thorough job description in place provides a vital defense against potential discrimination claims, as it allows your organization to objectively outline the position’s specific tasks and requirements, while guiding you to assess candidates based on objective factors specific to the position. Ensure your job description does not exclude any legally protected group and include the statement: “We are an equal opportunity employer.”

2. Ask interview questions based on the job description

Interviews can present increased risks because they have a higher likelihood of veering from the given structure. Counsel your interviewers to actively avoid discussing matters unrelated to the job, such as topics surrounding family life, ethnicity, or religion.

Interviewers should ask each candidate the same questions that relate directly to the position’s tasks and requirements, while avoiding asking questions, such as the following:

  • Are you married? Are you single? Do you have any children? Are you pregnant? Are you trying to have a family?
  • What year were you born? When did you first start working?
  • What country are your parents from? What is your background? Where were you born?
  • Do you have a disability? Have you experienced any serious illnesses in the past year?
  • What medications are you taking?
  • Have you ever filed a workers’ compensation claim?
  • Do you or any of your family members have a history of disorders or disease?
  • Avoid all questions about race, ethnicity, religion, or gender identity.
  • Be careful asking questions about arrests or convictions. Avoid questions relating to arrests if they are not directly related to the job or in states where it is unlawful to ask arrest-related questions. Also, avoid inquiring about convictions for jobs that are not security-sensitive, have no connection to the job, or in states where such questions are not permitted prior to a contingent offer of employment.

Note that, while questions about an applicant’s disability are unlawful, employers may explain the job requirements and ask a candidate if they are able to perform the job, with or without a reasonable accommodation and may ask a candidate with an obvious disability if he or she needs a reasonable accommodation to participate in the application process.

3. Train everyone who interviews job applicants

Effectively train all employees involved in direct contact with a job candidate (interviewing or hiring). Giving your employees a chance to practice interviewing before speaking to an actual candidate may minimize the risk of potential discrimination claims.

4. Maintain solid records

It is recommended that your company maintain solid interview records. Encourage your employees to take good notes during their interviews, indicating the objective business reason why decisions were made not to hire particular candidates. Avoid any discussion of protected characteristics in the interview notes. Some laws, such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, require employers to retain hiring records for at least one year after the hiring decision.

As your company conducts the hiring process, avoiding even the mere appearance of discrimination based on a protected characteristic (such as race, gender, sexual orientation, pregnancy, religion, age, national origin, or disability) is key to protect against discrimination-based lawsuits or investigations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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