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Screening/Hiring: Overview

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in Discrimination and Harassment,Hiring,Human Resources

Protecting yourself and your company from lawsuits starts the minute you decide to hire someone. Potential lawsuit land mines line your path.

What’s the best course of action? First, you need a job description that’s accurate, job related, nondiscriminatory and up to date. Next, you need to advertise the opening in a way that complies with state, federal and local anti-discrimination laws and attracts qualified candidates. Then you need to arrange and conduct interviews in a way that accommodates applicants with disabilities and shows that you aren’t using the process to screen out qualified members of protected classes. Finally, you must have a selection process that is blind to a candidate’s race, sex, age (if over 40), national origin and religion and that offers reasonable accommodations to qualified disabled applicants.

Federal laws have created a labyrinth of employee protections, and even employers that unintentionally discriminate will find themselves tangled in expensive litigation.

Best known is Title VII of the Civil Rights Act of 1964, which protects workers from discrimination based on race, color, sex, religion or national origin. Employers must also comply with the Equal Pay Act of 1963, which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination, and the Pregnancy Discrimination Act of 1978, which makes it illegal to discriminate on the basis of pregnancy, childbirth or related medical conditions. The Age Discrimination in Employment Act of 1967 protects individuals who are 40 or older. The Americans with Disabilities Act of 1990 protects qualified disabled individuals from discrimination and mandates that employers provide reasonable accommodations for their disabilities. The Genetic Information Nondiscrimination Act bars employers from using an employee’s genetic information in any employment decisions.

The Family and Medical Leave Act provides up to 12 weeks of unpaid leave for the birth or adoption of a child, the serious health condition of an employee or an immediate family member, as well as military-related leave for employees who have family members in the armed services or reserves. The Uniformed Services Employment and Reemployment Rights Act protects individuals who are members of the reserves or National Guard from discrimination based on their service status and protects their rights to be rehired after they have completed their active-duty service.

The Equal Employment Opportunity Commission (EEOC) enforces most federal employment discrimination laws, while the U.S. Labor Department administers most federal wage-and-hour laws. In addition, most states have their own departments of labor and equal employment commissions as well as laws that parallel federal ones or offer even greater protection for workers. Often, these state laws cover employers with fewer workers than do the federal laws.

Moreover, many cities have passed employment ordinances that prohibit discrimination on additional grounds than state or federal laws do. Sometimes these local laws protect those who are in same-sex relationships from discrimination and mandate medical and other benefits for same-sex couples on the same basis as the employer covers other workers.

Clearly, to stay out of court, organizations must make it their business to understand federal, state and local laws. But every year, thousands of employers learn the hard way. In 2013 alone, employers paid out $372 million to settle EEOC claims. And that’s just the tip of the iceberg. That figure does not include the millions awarded by juries in cases that went on to trial.

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