Legal Pitfalls and Best Practices During the Hiring Process
In today’s tight job market, businesses must recruit aggressively to attract talent. However, without a clear and compliant hiring process in place, and well-trained employees to implement the process, an employer’s hiring practices can open it up to significant liability.
For example, in 2018, the Seasons 52 chain of restaurants entered into a settlement agreement with the U.S. Equal Employment Opportunity Communication (EEOC) resolving claims that it engaged in age discrimination in its hiring practices, and paid $2.85 million to settle a class action lawsuit.
An employer can face lawsuits from candidates they did not hire because of unlawful job postings and/or things the employer said or did during the hiring process. Regardless of industry or type of business, an employer’s hiring practices must follow the law.
Job Posting Dos and Don’ts
The first step in most employer recruiting processes is to prepare a job description to attract interest from qualified candidates. In the process of crafting and publishing a job posting, employers must be aware that it is illegal to include language which discourages someone from applying for a job because of a protected classification.
Accordingly, it’s important to use non-discriminatory methods and questions in job postings. Avoid using language that states or suggests a preference for a particular gender, race, or age, such as:
- Looking for “intelligent, pugnacious” female
- Seeking “young, energetic” workers, “recent graduates,” etc.
- Recruiting “able-bodied” workers
Even the means by which an employer solicits interest in a job posting can run afoul of the law. Facebook recently settled a lawsuit alleging that its practice of allowing employers to target job postings on its platform (a practice called “microtargeting”) only to people with certain characteristics, such as people under 40 years old, was enabling discrimination.
In addition, the EEOC warns employers that the use and encouragement of word-of-mouth recruiting is proper only if the employer has a diverse workforce in place. The EEOC notes that, “The same method of recruiting in a non-diverse workforce is a barrier to equal employment opportunity if it does not create applicant pools that reflect the diversity in the qualified labor market.” In 2017 the EEOC sued Champion Fiberglass for, among other things, “word-of-mouth recruiting that had an adverse impact on non-Hispanic applicants and job seekers.”
Employers must also keep in mind that what is conventionally considered a standard practice in job postings, namely, placing educational standards in hiring criteria, can be considered unlawful.The EEOC’s Compliance Manual provides that, “Such requirements may run afoul of Title VII if they have a disparate impact and exceed what is needed to perform the job.”
There are a number of factors that employers are legally prohibited from considering when deciding whether to hire an applicant. As discussed above, potential liability extends to substance of job postings and the manner in which they are disseminated. To reduce the risk of liability, review job postings with an attorney to make sure they are objective and do not discourage those in protected classes from applying.
Application and Interview Best Practices
As with job postings, job application forms and interview questions should be crafted so as not to elicit information about a protected class, particularly age, religion, or disability status.
To guard against liability, employers should review job applications on a regular basis, scrutinize them for potentially illegal or improper questions, and update and maintain job descriptions. Because laws and regulations affecting hiring practices are frequently changing on a federal, state, and local level, employers should conduct such reviews with an attorney knowledgeable about employment law issues.
There is a great deal of nuance in evaluating whether a job application or interview question is either proper or improper. What may seem like an innocuous question could be a landmine. For example:
- Asking an applicant the years he or she attended college may indicate, or provide a basis for estimating, the applicant’s age. Such questions should be avoided.
- Inquiring during the hiring process whether the applicant has a disability—even though employers are required to provide reasonable accommodations to employees who need them—may raise a question of whether the hiring decision was based on the applicant’s disability. It is better to simply ask if the applicant can perform the essential functions of the job with or without reasonable accommodations.
Employers must also keep in mind that providing “reasonable accommodations” includes making appropriate changes during the job application process, which may include:
- Providing written materials in accessible formats, such as large print, braille, or audiotape
- Providing readers or sign language interpreters
- Ensuring that recruitment, interviews, tests, and other components of the application process are held in accessible locations
- Providing or modifying equipment or devices
- Adjusting or modifying application policies and procedures
Similarly, employers must ensure that their websites are accessible to job candidates. According to the U.S. Department of Justice 2015 Statement of Regulatory Priorities, “Being unable to access web sites puts individuals at a great disadvantage in today's society, which is driven by a dynamic electronic marketplace and unprecedented access to information.” Accordingly, employers should take steps to bring their websites into compliance with the “Website Accessibility Guidelines,” which can be accessed here.
Another area of concern—and potential liability—for employers is delving into past criminal convictions. On many job applications, there is (or at least used to be) an option to check a box to indicate whether or not the applicant has a criminal record or conviction. Because there is the potential for discrimination against candidates with criminal records, many states, cities, and localities have enacted laws known as “Ban-the-Box” legislation to limit what employers can ask candidates during the early stages of a hiring process.
Ban-the-Box laws vary across the country. A number of states have adopted legislation banning questions related to past convictions to one degree or another, while in others laws have been enacted only at a city or county level. A number of states have no Ban-the-Box laws in place. In Michigan, Detroit and Kalamazoo have ordinances applying to contractors.
On the federal level, the EEOC recommends that employers do not ask about criminal convictions on employment applications. If employers do ask, such inquiries must be limited to convictions for which exclusion would be job-related and consistent with business necessity.
Beyond job applications, employers often run into trouble by asking illegal interview questions. According to a 2015 CareerBuilder survey, one in five employers has unknowingly asked an illegal interview question, and at least one in three employers are unsure about the legality of certain interview questions. There is often a fine line between legality and illegality that is easy for employers to cross.
For example, it may seem reasonable and appropriate to ask a job candidate about their salary history, but 17 states have, to one degree or another, banned questions related to prior salary information. There is also an effort underway to ban such questions on the federal level on the basis that such questions perpetuate discriminatory wage disparities based on sex.
Further, asking a candidate whether they drink socially may violate federal law. Employers cannot ask about drinking habits because it could violate the Americans with Disabilities Act of 1990 (the “ADA”). Because treatment of alcoholism is protected under the ADA, a candidate is not required to disclose any alcohol-related disability information as part of the job application process.
There are many other types of questions, covering a variety of topics that are off-limits during an interview process. However, employers can often elicit the information they want without running afoul of the law by crafting better, lawful questions.
That is why it is important to consult with legal counsel about interviewing practices and to train employees about interviewing techniques.
Be Strategic About Your Hiring Practices
As with any business practice that is heavily regulated, legislated, and could give rise to liability, it’s critical for employers to undertake a thoughtful and strategic process as to their hiring practices. Consultation with a qualified employment lawyer is critical to ensure that your business is running an effective recruitment and hiring process while remaining compliant.
If you need assistance in reviewing your job postings, applications, and interviewing processes, please contact Mike Blum or another member of Foster Swift’s Employment Law practice group.
Mike Blum is an award-winning Michigan labor and employment lawyer in Detroit who has litigated some of the state’s most important cases. Part of Mike’s effectiveness as a litigator, in ADR and as a counselor to employers, comes from his 11 years with the National Labor Relations Board.View All Posts by Author ›
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