Hiring is one of the most difficult and legally dangerous tasks for supervisors. Just a few ill-timed words in a want ad or interview can trigger a legal complaint. Here are the key liability hot spots to watch out for in the hiring process:
A help-wanted ad that directly or indirectly states a preference for applicants based on gender, age or other protected characteristic is generally unlawful.
If you participate in drafting employment ads, list only the necessary job-related skills and qualifications—for example, “must be able to lift 50 lbs.”—rather than assumptions about who can perform the functions of the position—such as “male furniture-mover wanted.”
There are a few exceptions to this general rule, such as when a “protected” characteristic is a bona fide occupational qualification (BFOQ) for the job (e.g., requesting a female to work in a women’s locker room).
Although no law requires organizations to maintain job descriptions, it’s a good practice. Job descriptions can help applicants understand the job’s requirements and discourage poorly suited applicants from applying. Here are tips for drafting job descriptions:
- List the “essential functions” of the job—the fundamental job duties.
- Identify the skills, knowledge and abilities required to perform the essential functions and any special requirements for the job.
- Include a summary of nonessential functions that an employee may be asked to perform occasionally or intermittently.
- Include descriptions of the work environment, equipment and expected work habits.
- Include a disclaimer that the job description does not constitute an exhaustive list of duties and that may revise it at any time.
- Review and update descriptions as needed so they remain accurate.
Written job applications and face-to-face interviews help hiring managers gather applicant information and assess their qualifications. But asking for some kinds of applicant information may violate anti-discrimination laws. Stick to questions that assess a candidate’s skills, ability or qualifications.
Avoid questions that may trigger stereotypical assumptions about protected class status, such as:
- Marital status: Are you married? Is that your maiden or married name?
- Age: How old are you? When did you graduate from high school?
- Disability: Do you have any disabilities that would impair your ability to work? How often were you out sick in your last job?
- Religion: Which church or synagogue do you attend? What religious holidays do you observe?
- Gender/sex: Are you pregnant? What will you do with your children while you are at work?
- National origin/race: Where were you born?
Federal law sets limits on employers’ ability to obtain background reports and demand pre-employment medical examinations. Before an applicant’s references are checked, he or she should be notified in writing that the check is occurring. Obtain the applicant’s written consent to the reference checks.
When checking an applicant’s references, ask only for job-related information. Stay away from anything unrelated to how the person could perform the task at hand.
Supervisors need to be mindful of inadvertently making promises they don’t intend to keep.
Enthusiastic managers sometimes make statements to applicants that suggest long-term or permanent employment (“You’ll always have a job here if you hit your sales quota.”) or indicating that they can only be fired for cause. (“You will always be treated fairly.”) Those statements can easily become ammunition in later breach-of-contract litigation.
Avoid making unintended promises, either orally or in written communications, such as offer letters. That way, you will retain flexibility to respond to personnel issues in the most appropriate way, given the circumstances.
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