Employers are usually miffed when they discover that an unsuccessful applicant asserts a failure to hire claim against them. An employer’s typical response is “Aren’t I free to choose the people I want to hire?” Unfortunately, the answer is not so clear. Both federal and state laws restrict pre-employment inquiries and prohibit an employer from making hiring decisions based upon protected characteristics, such as race, age, gender, religion and disability. When an unsuccessful applicant alleges that a hiring decision was motivated by discriminatory purposes, the employer has the burden of showing that its decision was based on objective criteria. In this context, it is imperative that the employer is conscious of which questions are appropriate and which are not, and at what stage during the hiring process such inquiries may be asked.
Pre-Employment Inquiries
An employer’s first contact with an applicant is typically the application in response to a job advertisement. The employment application is the first opportunity to learn about the applicant, but applications should be prepared so as not to inquire further than necessary. Standardized application forms should be used to solicit basic information about applicants that may not be included in their resumes. Standardized application procedures should also result in streamlined operations, the creation of open lines of communication and an enhanced ability of the human resources department to oversee the hiring process.
Employers should routinely seek the following basic information
on job applications:
- General biographical information
- Work Experience
- Education
- References
- Applicant’s statement and signature
In addition to providing basic information in assisting with employment decisions, the employment application may be an important tool to put the applicant on notice of some employment policies and to gain their consent to, or acknowledgment of, those policies.
On an employment application,
common disclaimers and statements include:
- Employment-at-will disclaimers
- Equal employment opportunity notices
- Policy indicating that false or misleading information or omission are grounds for termination
- Requirements that applicants sign authorizations or releases for background and/or reference checks
- Testing notices and acknowledgment that the workplace is smoke free and drug free and that the applicant agrees to comply with all related rules, including drug and alcohol testing
- Notice of how long the application will remain on file
During the application process, in order to avoid potential claims of discriminatory actions in an employer’s hiring practices, questions relating to the following topics should be avoided:
- race
- gender
- national origin
- religion
- native language
- marital status (or request for name of spouse)
- children & childcare arrangements
- pregnancy
- direct or indirect questions about medical conditions
- disabilities or necessity of reasonable accommodations
- past leaves of absence
- professional memberships
- union memberships
- memberships in charities or organizations
(The list is a general statement, and each employment position may include unique responsibilities or attributes that necessitate including questions on a job application relating to some of the topics or issues listed above.)
Utilization of a Recruiter
Many companies rely upon temporary employment agencies and recruiting services for their hiring needs. However, an employer’s use of these agencies is not without risk. Employers are under the misconception that use of a recruiter avoids liability under the employment discrimination statutes. This is not the case. Employment and recruiting agencies are subject to the same requirements as employers under most employment laws, including the ADEA (Age Discrimination in Employment Act) and Title VII of the Civil Rights Act of 1964. In most cases, the employer and the recruiter are considered to be in a “joint employment” relationship. As a result, it is possible that the employer may be held accountable for the discriminatory actions of the recruiter.
Employers should thoroughly investigate the hiring practices of an employment or recruiting agency before enlisting their assistance. An employer should keep all records relevant to the hiring process that are received from the agencies; and, if an agency comes under investigation by the EEOC, an employer using the agency has an affirmative duty to maintain all applicable records and make them available to the EEOC for use in an investigation.
Reference Checks
Employers must exercise caution when hiring new employees, not only to avoid hiring mistakes and potential lawsuits for violation of fair hiring laws, but also to avoid claims of negligent hiring. Conducting reference checks is one method to investigate an applicant. However, many former employers are reluctant to provide information on a reference check other than basic information such as hire date, position, hourly wage or salary, and separation date.
In order to obtain the most information on an applicant from a reference, follow these suggestions:
- Provide an authorization and release signed by the applicant.
- Assure confidentiality.
- Contact the direct supervisor since s/he should have the most information about the applicant.
- Explain the position for which the applicant is seeking.
- Ask open-ended questions, including “Is there anything else I should know about this applicant?”
- Ask whether the former employer would re-hire the applicant.
Credit Checks
The hiring process increasingly includes consumer credit reports which are regulated by the Federal Fair Credit and Reporting Act. Although credit checks protect employers from some negligent hiring claims, such checks may not relate to the applicant’s ability to perform the functions of the open position. Furthermore, an employer may discover protected information from conducting such a check, such as an applicant’s medical history.
Criminal Convictions
An employer must exercise caution to avoid liability for negligent hiring or retaining an employee who has a history of criminal convictions. When seeking information about convictions, an employer should include language like: “Any misinformation or omission with reference to the information furnished will be a basis for disqualification or termination following employment.” Then, if an employer later discovers that an applicant failed to disclose all or part of his or her criminal history, the employer may terminate the employee.
The EEOC (Equal Employment Opportunity Commission) has taken the position that questions concerning arrests are improper unless the applicant is being considered for a “security sensitive” position. In addition, the EEOC takes the position that inquiries relating to an applicant’s conviction record are improper unless the conviction is in some way related to the essential functions of the position being applied for.
Use of Illegal Drugs
An employer may refuse to hire an applicant because of his or her current illegal drug use. It is permissible for employers to inquire about an applicant’s current illegal use of drugs. However, questions that are likely to illicit information about whether an applicant has or may have had substance abuse problems in the past or have been treated for such problems are impermissible under disability discrimination laws.
Pre-Employment Examinations
Utilization of pre-employment medical examinations is a sensitive practice. Under the ADA (Americans with Disabilities Act), an employer is prohibited from conducting medical examinations on an applicant before extending the applicant an offer of employment. However, an employer may make employment conditional upon passing a post-offer, pre-employment medical examination.
Employers should know that if the post-offer medical examination has the effect of screening out individuals with disabilities, the employer must be able to demonstrate that the examination relates to essential functions of the positions and is consistent with business necessity. In addition, the ADA requires that employers keep all information obtained from medical examinations strictly confidential.
Employers may test applicants for illegal drug use prior to extending an offer because drug addiction is not considered within the definition of “disability” under the ADA. Employers should avoid questions about prescription drug use, because information about prescription drugs could be used to screen out applicants with particular medical conditions.
Some General Hiring Do’s And Dont’s
- DO limit pre-employment skills tests to the testing of skills necessary to perform the specific job.
- DO NOT require physical examinations until after a conditional job offer has been extended to the applicant, and only if pre-employment physicals are required of all employees within the job classification.
- If outside recruiters are used, DO keep in mind that your business may be held liable if it knows, or has reason to know, that the agency applies discriminatory hiring practices.
- If outside agencies are used to conduct background checks, DO institute procedures that comply with the Fair Credit Reporting Act.
- If you hire any applicants on a temp-to-perm basis, DO obtain a copy of the agency’s Declarations Page of their Workers’ Compensation Policy.
- DO train all employees, supervisors and managers to ensure an understanding of the company’s hiring policies and procedures.
- DO familiarize your business with what pre-employment inquiries are permissible and impermissible.
- During an interview, DO focus on job-related inquiries and ask open-ended questions.
Finding the right employee to fill positions can be fraught with hazards, but by exercising caution and understanding the general rules, employers should be able to navigate the hiring process. When an employer finds itself with a question about best practices, they should seek legal guidance to ensure they don’t make a critical mistake.
