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Job descriptions: Craft with precision to avoid bias risk

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in Discrimination and Harassment,Employment Law,Hiring,Human Resources,Leaders & Managers,Performance Reviews

THE LAW. While no federal law requires your organization to write job descriptions for each employee, it's a wise legal move that most employers follow.

When drafting job descriptions, be especially careful to avoid job qualifications that could be viewed as discriminatory. Federal laws make it illegal to discriminate against applicants or em-ployees on the basis of their race, skin color, gender, religious beliefs, national origin, disability or age. Plus, many states prohibit discrimination based on other characteristics, including marital status and sexual orientation.

That doesn't mean these topics are always taboo in job descriptions. In certain limited circumstances, employers may have legitimate reasons to hire employees of a particular gender, age, religion or ethnicity, even though such a preference would normally be illegal. These are called bona fide occupational qualification (BFOQ) exceptions.

Religion, sex, age or national origin can be a BFOQ only if it's a reasonably necessary qualification for the normal operation of the job, and it very rarely is. Race can never be a BFOQ. Here are a couple examples:

Religious BFOQs. Being Catholic is a valid qualification for performing the duties of a Catholic priest, just as being Jewish is a valid qualification for a rabbi position. But beyond that, you can rarely ever cite religion as a BFOQ.

Gender BFOQs. Only refer to gender as a BFOQ for jobs affecting personal privacy, such as restroom attendants or security guards who search employees or customers. This limitation could apply to acting and modeling work as well. But almost all other job descriptions should be gender-neutral.

Job descriptions took on a new importance with the passage of the Americans with Disabilities Act (ADA). The ADA says disabled employees are entitled to reasonable accommodations if those accommodations are needed to perform the "essential functions" of the job. So, every job description must identify which functions are essential for a job and which are not.

WHAT'S NEW. You've probably re-examined many employee job descriptions as part of your preparation for the new Labor Department regulations on overtime eligibility. Having a sound job description can help your com-pany defend your decision to classify particular positions as exempt from overtime pay.

Meanwhile, recent EEOC litigation suggests that job descriptions are increasingly the source of discriminatory hiring/promotion complaints.

Latest example: Jillian's, an Indianapolis-based restaurant chain, recently settled a sex discrimination lawsuit by agreeing to pay $360,000, prepare gender-neutral job descriptions and add anti-bias notices in its want-ads. A group of male employees claimed the restaurant chain kept sex-segregated job classifications and failed to hire men to lucrative server positions.

HOW TO COMPLY. Job descriptions are among the first items that courts and regulatory agencies examine to determine the legitimacy of a discrimination charge. And job descriptions are vital for ensuring that your company's job training, salary administration, performance appraisals and other employment practices are sue-proof.

You can use your job descriptions as part of a defense in court, but only if they're accurate and were prepared before the job was advertised.

That's why you should have written job descriptions for all jobs. To ensure accuracy, perform a job analysis of each position. Talk to the people already doing the job and their supervisors. Find out:

  • Current title and the job's essential functions, including any physical requirements, such as heavy lifting.
  • Any secondary duties.
  • Attendance requirements. 
  • Any educational requirements and special skills necessary. 
  • Standards to which the person filling the post is held. (A salesperson, for example, may be expected to bring in five new clients per month.)
  • The employee's supervisors. 
  • Any positions a supervisor will be responsible for overseeing. 

For new jobs, sit down with the department head who is creating the position and ask for a description that covers the points mentioned above. If an applicant ever accuses you of discrimination, especially under the ADA, the EEOC will review what you identified as the job's essential functions to see if the charges have merit. If you don't have a job description, the commission may decide for itself what functions are "essential."

You can specify duties that are desirable but not required. Just make sure the job description clearly states that these additional functions and responsibilities are not job requirements.

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