What You Need To Know Before You Hire An Employee – Part 1

In this Part 1 of a two part post on HR compliance, we’re going to address your company’s obligations in the hiring process, before you even hire a new employee.

The Basics

There are many federal laws that govern employment and hiring decisions. Some of the most important are:

• Title VII of the U.S. Civil Rights Act of 1964
• The American with Disabilities Act
• Fair Employment and Housing Act,
• Age Discrimination in Employment Act
• Pregnancy Discrimination Act of 1978.

 I call these “The Basics.” These laws forbid discrimination against a candidate or employee on the basis of their race, color, religion, gender, national origin, age, disability, pregnancy, genetic make-up, or individuals with disabilities.  These characteristics are called “protected classes.”

Just because some action you take may not violate federal law, it might violate state law, or even a city’s laws.  For instance, sexual orientation is not a protected class under federal law, yet many states and cities prohibit discrimination based on this characteristic.  You must know the laws of every state and city where you have employees. 

Unfortunately, most people believe that if they don’t overtly discriminate against a protected class, they’ve met their obligations.  But this is not the case.  Employers are also prohibited from using or creating a policy that has a disparate impact on a protected class.  Disparate impact means that an employer’s rules look nondiscriminatory but actually are harmful to a protected class.  This second situation is often the real culprit when it comes to hiring. And finally, if you are a federal contractor, there are even more applicable laws. 

Before Hiring

When you prepare your job listing, make sure they comply with The Basics.  Here are examples of language you must not use.

1. Don’t say “seeking recent college grad” as this could be construed as age discrimination. Instead, use the phrase “entry-level position.”
2. Don’t say “young and energetic” as this could also be construed as age or disability discrimination.
3. Don say “a clear speaking voice,” as this could be construed as discrimination based on national origin (i.e., the person speaks with an accent).
4. Don’t say salesman or waitress; instead use salesperson and wait staff.
5. Don’t refer to race, unless you are required to abide by Affirmative Action requirements and the applicant may be required to complete an AA form.
6. Don’t request applicants from a nearby neighborhood, especially if your neighborhood is populated with a single race or nationality.

Using technology in recruiting raises its own problems. If a position does not require the use of computers but you only accept online applications, you open yourself up to discrimination claims based on disparate impact because the ad would leave out lower income applicants who don’t have access to computers. In these cases an employer should also run ads in other media (such as newspapers) and community outlets, and allow applicants to respond via telephone or in-person.

Finally, by including the simple statement: “[Name of company] is an Equal Opportunity Employer” at the end of a job advertisement, you make clear you don’t create any unintended discrimination and can save you a lot of hassle down the road.

What’s In A Job Description?

The job description should only focus on the essential skills and job requirements.  Like in the advertisement, it must comply with The Basics and not discriminate based on a protected class. 

However, your job descriptions can, and more importantly should, state specific job requirements, including physical responsibilities.  Even if this description would result in discrimination, it is permitted as long as it is reasonably related to the job duties and function.  For instance, lifting, sitting, standing, walking, carrying, getting in and out of car, etc. . . .  can be included.

Here’s an example of when a job description can go bad:  A manufacturer of bathroom fixtures imposed a height minimum of 5’4” for all employees working on the manufacturing line; the restriction appeared to be reasonably related to the job. The policy objective was to make sure the employees were big enough to meet the physical requirement of the job – to lift heavy porcelain fixtures.  Unfortunately, the height restriction had a disparate impact on women, who tended to be shorter, and resulted in making them ineligible for the higher-paying jobs on the production line. In fact, more than two thousand women were turned down for jobs.  While a weight lifting requirement would have been reasonable, height was the wrong way to measure it because it ended up including women under 5’4” who could meet the lifting requirements. The height requirement was therefore unreasonable and unsupportable under the law and the manufacturer ultimately settled with $886,500 being paid to the women who were turned down for the jobs.

Now here’s a better example:  A company is hiring for a stockroom manager position. The job description states the candidates must be able to lift up to 50 pounds and must have experience in training forklift operators. Candidate A has a physical disability that limits him to lifting a maximum of 15 pounds. B has a learning disability and has no experience in training forklift operators. C has no disability and meets all of the qualifications and experience requirements. If the employer hires C, the job description is evidence that he did not discriminate against A and B.

Actionable Takeaway

Make sure your job descriptions state:

• an accurate job title;
• essential job functions and physical requirements for those functions;
• qualification standards, including necessary skills, education or credentials;
• experience requirements; and
• performance and attendance expectations

All of the above must be reasonably related to accomplishing the job duties.  Simply stated, good job descriptions protect against discrimination claims in hiring and firing an employee.

We covered a lot in this post, yet there is more to worry about before you hire your next employee.  We’ll cover more in Part 2 to this post.