10 COMMANDMENTS: Issues for Employers to Consider During the Hiring Process

By Robert Rosenberg, Esq.– @ New York Jewish Guide


Title VII of the Civil Rights Act of 1964 prevents employers from basing hiring decisions on a person’s “protected characteristics”. A person’s protected characteristics include: age, race, sex, religious practices, disabilities, plans to marry or have children, pregnancy, race or national origin, and criminal history. Some states have established their own protections, including questions about the applicant’s sexual orientation. Throughout the recruiting process (job postings, interviews, checking references and making the offer), it is critical to be mindful of the prohibited grounds and make sure that all questions are asked in a way that gives all applicants a fair chance to respond based on your job needs. Below is a list of some of the potential legal issues that can arise during the recruiting process.

1. Job Advertisement
Employers must word job advertisements carefully to avoid language
that could be interpreted as suggesting a preference for a protected
characteristic. For example, advertisements for “recent college grads”
may be viewed to discriminate based on age and could run afoul of the
Older Workers Benefit Protection Act (cannot ask about a person’s age)
or the Age Discrimination in Employment Act which provides protection for applications over the age of 40 from discrimination during in
the pre-employment process.
2. Conducting the Interview
When scheduling the interview, take note of all religious observances
that might affect a candidate’s availability. Arrange for any reasonable
accommodations and consider the location of the interview site and
whether it is accessibility to candidates with disabilities. Prior to the
interview review the candidate’s application and resume and possibly
outline the questions that you want to ask. It is important to regularly
train employees and supervisors who assist in the hiring process on all
relevant policies and procedures. Only through training can you help
them to recognize and avoid harassment and discriminatory behavior.
3. Improper Inquires
Employers cannot elicit information, directly or indirectly, about the
protected status of an applicant during the hiring process. Two areas
that are frequently difficult for employers are inquiries about disabilities
or pregnancy. The Americans with Disabilities Act (ADA) prohibits job
discrimination based on a person’s physical disabilities, including a
prohibition against pre-employment questioning about the disability.
The Pregnancy Discrimination Act (PDA) prohibits job discrimination
on the basis of pregnancy, childbirth and related medical conditions.
One of the biggest pitfalls facing employers is that some questions,
which may be appropriate based on the position, could unintentionally
elicit information related to a handicap, disability or other protected
status, for instance a current physical condition, a major illness, Worker’s Compensation or health insurance history or absence of previous
4. Questions about drug use.
While it is permissible to ask applicants about current drug use, you are
not permitted to directly or indirectly elicit information about past drug
and addictions. This can be tricky since questions about current drug
use could reveal past drug use.
5. Permissible Questions
It is advisable to focus on questions about the ability of an applicant to
perform the essential functions of a position and avoid any questions
that would reveal a disability. As an example, you may ask the candidate about where she currently resides and how long she has been there
but you cannot ask about previous residences as this could illicit impermissible information, such as national origin. Generally questions about
education, especially if related to the position are permissible. However,
it is not possible to ask about financial arrangements for school, including student loans or scholarships. Also, in order to comply with the
Federal Immigration Reform and Control Act (IRCA) you can ask if the
applicant is “prevented from being employed in the United States because of a visa or immigration status?” You cannot ask them any other
questions as to their nationality, lineage, ancestry, national origin, descent or even the ancestry of applicant or applicant’s spouse.
6. Background Checks
Employers should develop and apply a consistent policy regarding background checks, which can include making hiring contingent on applicants consenting to a background check. The fact that information is a
matter of public record does not make it acceptable for review during
the hiring process. For example, workers compensation and bankruptcy
filings generally may not be factored into a hiring decision. Credit history and criminal records are typically prohibited by state law unless the
employer can prove its relevance to the job. With respect to credit
checks, some states may require employers to comply with the Fair
Credit Reporting Act as well other local legislation. Education records
are permissible but often require the consent of the applicant.

7. Checking References
When checking references, you must adhere to the same restrictions as
during the interview and avoid asking questions that could elicit responses about the applicants protected status. For example, just as you
cannot ask about a disability in the interview process, you cannot ask a
former employer about the number of sick days the applicant took.
However, you can ask if the applicant was reliable and punctual. While
not required, obtaining a release for each reference is advisable and can
facilitate more complete and candid responses.
8. Pre- Employment Tests
Pre-employment skills tests are a permissible hiring criteria if administered consistently and in accordance with state and federal guidelines.
These tests can measure an applicant’s job-related skills, abilities, and work activities. A good place to start in deciding what
testing to implement is the Uniform Guidelines on Employee Selection
Procedures (UGESP) which provides an interpretive guideline for potential legal issues surrounding employee selection. Under certain state
and federal guidelines employers may be required to offer a reasonable
accommodation to an otherwise qualified applicant who turns out to
have a protected disability. A physical test that has the potential to
screen out individuals with disabilities might be impermissible if the
employer can demonstrate that the tests are job-related, consistent with
business necessity or that no reasonable accommodation is possible that
would enable certain applicants with disabilities to meet the requirements of the test.
9. Pre-Employment Examinations (Drug Tests)
Each state has its own laws regarding pre-employment drug testing
which should be examined before any tests are administered. Generally
these laws allow for drug testing provided the testing is administered to
all applicants. Some states may require a formal conditional offer of
employment before the test is administered. If tests are to be administered before a formal offer it is advisable to provide notification of the
same, whether in the job application notice or at the first interview.
10. Making the Offer
Salary negotiation is a critical step in the hiring process, largely because
candidates with the most in-demand skills are likely already evaluating
other employment opportunities. You must ensure that differences in
wages when offers are being made are based on the concept of skill,
effort and responsibility, seniority systems where unions exist, merit
systems and systems that measure earnings by quantity or quality of


Mh – New York Jewish Guide.com


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