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

1. 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.
   
   
2. Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.
   
   
3. 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.
   
   
4. Title VII of the Civil Rights Act of 1964.
   
   
5. Title VII of the Civil Rights Act of 1964.
   
   
6. 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.
   
   
7. Pregnancy Discrimination Act, 42 U.S.C. § 2000e (k).
   
   
8. International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 449 U.S. 187 (1991).
   
   
9. Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971).
   
   
10. See Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971); Gregory v. Litton, 472 F.2d 631 (9th Cir. 1972).
    
    
11. See Green v. Missouri Pacific Railroad Company, 523 F.2d 1290 (8th Cir. 1975).
    
    
12. -- 38 U.S.C. § 4301 et seq.
    
    
13. See Johnson v. Pike Corporation of America, 322 F.Supp 490 (C.D.Cal. 1971).
    
    
14. Immigration Reform and Control Act of 1986, 8 U.S.C. §1324a.