The hiring process can be stressful for both employers and candidates. Employers want to find the best candidate for the job, while considering factors such as diversity, cost, and cultural fit. Employers should also be aware that missteps they or their employees may make during the hiring process, particularly during interviews, can have a range of consequences – including complaints of discrimination, negligent hiring or a lack of adaptation. This article explains the laws surrounding the hiring and interview process and offers some best practices (the “Dos”) and examples of behaviors and issues that can expose employers to liability (the “Don’ts”) .
There are a number of federal laws that protect employees and applicants, based on several protected categories. These include Title VII (prohibits discrimination based on race, color, religion, national origin, and sex); the Americans with Disabilities Act (ADA); the Age Discrimination in Employment Act (ADEA) (prohibits age discrimination against persons aged 40 or over); and others. Several states have enacted laws that create additional protected categories, including marital status, personal appearance, family responsibilities, political affiliation, registration, and reproductive health decisions. Asking a candidate questions, either on the application form or during an interview, that involve one of these protected categories potentially engages employer liability, if the question is not carefully phrased and related to work.
In employment discrimination cases, applicants may allege either that they were intentionally discriminated against or that a particular hiring practice has a disparate impact on protected groups. A question that is prima facie neutral regarding education, experience, physical characteristics, or credit information may eliminate a disproportionately large number of applicants based on protected status and thus lead to a disparate impact claim. Therefore, all hiring practices and interview questions must be justified by a legitimate business purpose.
Best practices that can mitigate an employer’s liability include creating and adhering to a standard maintenance plan, training interviewers, using a standard appraisal form, and retaining all documentation. used in the hiring process for at least two years.
To create a standard interview plan, employers should consult the job description and link all questions to relevant job qualifications. This avoids “on the fly” questions that can engage an employer’s liability and produces more reliable and relevant information that will help employers choose the best candidate. Creating this pattern and using it in every interview also allows for a valid comparison between all candidates and counteracts unconscious bias among interviewers.
While it’s a great idea to involve a range of current employees in the interview process to gain diverse perspectives and assess cultural fit, it’s essential that interviewers be trained. This will lead to a more efficient recruitment process that attracts top talent and reduces the risk of an interviewer saying or doing something that inadvertently puts the employer at risk.
Training topics can include unconscious bias, illegal interview questions, technical interview skills, and how to create a great candidate experience.
During or after the interview, all interviewers must complete a standard evaluation form that notes their impressions of the candidate. However, these notes should be limited to relevant job-related information to avoid inferring that an unauthorized characteristic was the basis of the hiring decision. This assessment form and the standard interview plan should be retained for at least two years, along with the application form, resume, reference checks, background checks and any other documents used in the evaluation process. selection.
Things not to do
The biggest pitfall employers face in interviews is asking questions that solicit information about a protected category. Even seemingly innocuous questions that arise in small conversations can cause problems. There are also differences in the information an employer may request during the interview and application stage compared to after making a job offer. The following examples highlight the dividing line between permissible and non-permissible issues, but are by no means an exhaustive list of issues of which employers should be aware.
Some say the best interviews are the ones that happen like a regular conversation between colleagues or friends – and that can certainly be true. However, questions that arise when getting to know someone may incidentally obtain information about a protected category that is unrelated to the job. For example, “When did you graduate from college?” and “Where does your spouse work?” involve age and marital status, respectively.
In addition, questions about an applicant’s membership in clubs, societies, lodges, or other organizations may violate the National Labor Relations Act (NLRA), which prohibits matters which tend to coerce an employee or restrict or interfere with his or her right to unionize. Even in cases where the candidate was eventually hired, the National Labor Relations Board (NLRB) has found that questions about membership status, feelings toward unions, or past union involvement are unduly coercive and illegal. .
There are also a few questions an employer should ask to ensure a candidate is qualified for their position, but there is a fine line between exactly what wording is acceptable and what is not. For example, an employer may need to know if an applicant is at least eighteen years old to comply with the Fair Labor Standards Act (FLSA) and its rules for minors. Ask “Are you at least 18 years old?” is allowed, while “How old are you?” is not. Small differences like this reinforce the importance of training all interviewers and using a standard interview plan.
Finally, there are some differences in what an employer may ask or require, depending on whether an offer has been extended or not. Under the ADA, an employer cannot ask questions during the interview that would reveal the existence of a disability or require a medical examination, but such requests are permitted after the offer is extended. . Similarly, many states have “Ban the Box” laws, which prohibit employers from asking about a candidate’s criminal history or conducting a criminal background check before they have made a job offer. .