Hire education: Your step-by-step guide to legal hiring practices

by Ugo Ukabam, Esq.

Employers operate in an increasingly complex legal environment, made all the more difficult by the tough economy. Hiring has emerged as a particular trouble spot. Here are the key liability hot spots you must watch out for in the hiring process:

Employment advertisements

A help-wanted ad that directly or indirectly states a preference for applicants based on gender, age, or other protected characteristic is generally unlawful.

When you advertise for an opening, 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 exceptions to this general rule, such as when an employer has adopted a lawful affirmative action plan or the preferred characteristic is a bona fide occupational qualification (BFOQ) for the position being advertised.

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Age, for instance, may be a BFOQ for a part in a movie requiring a child actor. Gender may be a BFOQ for working in a women’s locker room.

Job descriptions

Although no law requires employers to maintain job descriptions, it’s a good practice. Thorough descriptions 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 responsibilities and that management may revise it at any time.
  • Review and update descriptions as needed so they remain accurate.

Applications and interviews

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:

  • Marital status: Are you married? Is that your maiden name or your 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?

Background checks

Federal law limits employers’ ability to obtain background reports and demand pre-employment medical examinations.

Before checking an applicant’s references, notify the applicant in writing that you will do so, and obtain the applicant’s written consent to the reference checks.

When checking references, ask only for job-related information.

Offers and offer letters

Beware of inadvertently making promises you don’t intend to keep.

Enthusiastic employers often make statements to applicants suggesting long-term or permanent employment, or indicating that, “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, employment handbooks and personnel policies. That way, you will retain flexibility to respond to personnel issues in the most appropriate way, given the circumstances.


Author: Ugo Ukabam, Esq., is an attorney with Gray Plant Mooty’s Employment Law Practice in Minneapolis.

Filling positions? 6 smart do’s and don’ts

Despite the complexity of the hiring process, the best advice for employers can be captured in a few fairly simple rules:
  1. Don’t use advertisements that directly or indirectly express a preference for (or exclude) a person of a particular protected class status (age, sex, race, religion, etc.).
  2. Do draft job descriptions that accurately describe the positions.
  3. Do ask interview questions that relate only to an applicant’s ability to perform essential functions of the job.
  4. Don’t ask questions that may trigger stereotypical assumptions about protected characteristics.
  5. Don’t allow managers and supervisors to consider protected class status when making hiring decisions.
  6. Don’t make unintended promises in conversations with applicants, in the offer letter or in your employment handbooks and personnel policies.