DISCRIMINATION IN HIRING

The fact is that what you do, even with no thought of discrimination, can cause applicants to believe that they have been discriminated against because of their sex, race, age or other protected characteristic.  The following will help you avoid claims of discrimination by applicants for employment with your firm.

ADVERTISING FOR EMPLOYEES:

• Pictures or Drawings: If pictures are used, include women and persons of different races whenever possible.

• Want Ad Content: Do not suggest that the job opening is designed for men or women unless there is a bona fide occupational qualification (BFOQ).  Do not advertise for "housewives".  Avoid sex stereotype words, such as "salesman" instead of "salesperson".  Focus on the experience and skills necessary for the job, and job-related qualifications such as a college degree.  Do not request that applicants send their pictures.

• Age: Avoid such phrases as "recent graduate", "young and aggressive", or "retirees".

SOURCES OF APPLICANTS:

Another important step in establishing your firm as an equal opportunity employer is to notify all recruitment sources of your non-discrimination policy.

You should make an active effort to generate an applicant pool which reflects the availability of qualified women and minorities in your labor market.

APPLICATION PROCESS:

The application form, the interview and tests are legitimate ways of gathering information about a potential employee.  If not worded correctly, however, they can be dangerous.  There is a fine line between asking essential questions and potential discrimination.  The following suggestions will help to establish what you can and cannot ask.  Remember, ask only what you can prove to be valid in relationship to actual job requirements.  Don't ask any question that is unrelated to the ability to perform the job.

The Americans with Disabilities Act (ADA) makes it unlawful:

• to ask an applicant whether he/she is disabled or about the nature or severity of a disability, OR

• to require the applicant to take a medical examination BEFORE making a job offer.

You can ask questions about an applicant's ability to perform job-related functions, as long as the questions are not phrased in terms of a disability.  You can ask all applicants to describe or to demonstrate how, with or without reasonable accommodation, they will perform job-related functions.

Of course, don't ask questions about the applicant's race, color, religion, sex, national origin or ancestry, physical or mental disability, unfavorable military discharge other than dishonorable, age 40 or older, Vietnam-era veteran status or marital status unless such information can be shown to have a valid relationship to the job in question.  The same is true for height and weight or other physical qualifications.  Questions on disability are illegal.  The other questions are unwise.  Avoid making any notations on applicant forms.  Additional information from interviews (reference checks, etc.) may be attached, but coding, numbers and cryptic shorthand notes on the application itself could be misinterpreted and should be avoided.

Some questions you can ask:

• Questions about previous work history and experience, including gaps in employment.

• Questions regarding convictions for felonies.  You can ask, "Have you been convicted of a felony?" (You should not ask, "Have you ever been arrested?")

• Questions about necessary education and language skills.

• Questions about required licenses.

• Questions about academic achievement.

JOB DESCRIPTIONS

Job descriptions, if they exist, must be accurate in relation to actual function and duties and should identify truly essential job functions.  In addition, education/experience requirements must be relevant.  Job descriptions are often helpful but are not required by law.

INTERVIEWING

Make sure interview checklists comply with the same restrictions as the application form.  Do not ask questions in the oral interview that should not be asked on the application.  You, can, however, tailor the interview to the position's unique requirements.

The interviewer should keep objective notes as to why an employee is hired or rejected.  To say "not impressed" or "bad attitude" is not enough.  The notes should be objective and detailed, not subjective or conclusionary.  Keep records one year, whether or not the applicant is hired.

Reasonable accommodation is required in the interviewing process.  For example, if an applicant is hearing impaired, an employer may need to provide written questions to the applicant instead of conducting an oral interview.

TESTING

If the use of tests results in an adverse effect on protected classes, the employer must validate the relationship between those tests and actual job requirements.  In other words, you must be able to show that the results of the tests are a predictor of good job performance for that particular position.  The same standards of evidence of validity apply to interviews, application blanks and performance evaluations.  As with tests, be prepared to defend your actions, against the criteria set forth in these guidelines.

SELECTION

As an employer, you should be ready to back up any prerequisites for selection with statistical data proving their validity, or documenting bona fide occupational qualifications.

GUIDELINES FOR SELECTION

Objective criteria, those which are measurable and factual, such as the following, are acceptable:

• Typing/computer skills criteria for different clerical or secretarial jobs.

• Specific physical qualifications (able to lift ten pounds, etc.)

However, some objective criteria are not advisable, such as:

• Requiring minimum educational requirements, (for example, high school diploma or college degree), unless you can prove they are essential to job performance.

• Requiring minimum experience requirements, unless you can prove they are essential to job performance.

Subjective criteria, those which are not measurable and thus intuitive, such as the following are generally problematic:

• Appearance, attractiveness

• Hair style, complexion, clothing, earrings, etc.

• Avoid "over-qualification" as a reason for failure to hire.  This could be construed to mean "too old", which would open the door to an age discrimination charge if the applicant is at least forty years of age.

If an applicant is not hired, the reasons should be clearly documented (it can vary from a simple notation - "hired someone better qualified" - to a detailed explanation of why this applicant was rejected).

PRE-EMPLOYMENT PHYSICAL

Medical and psychiatric examinations are properly used to screen applicants for employment who would be unable to perform a particular job safely and efficiently.  Occasionally in the past, physical and psychiatric examinations have been misused in employment screening to reject qualified applicants with disabilities.  Consequently, disability discrimination law regulated the role of physical and psychiatric examinations in employment screening.  Such examinations must not be given before the applicant has been given an offer of employment conditioned on passing the examination.

If you require pre-employment medical examinations as part of the hiring process, you should determine:

• What medical conditions may be protected disabilities under the applicable federal, Illinois or local ordinance and if so, what accommodations will need to be made.

• The extent to which an applicant's disability can be considered pre-hire (does the applicant's disability interfere with their ability to perform the essential functions of the job).

• The extent to which the employer is required to reasonably accommodate the applicant's disability.

Physical examinations should not be used to screen applicants for a job category unless each title in that category requires a physical examination.  Physical examinations can be conducted to determine what kind of an accommodation would be appropriate.  In addition to the Illinois Human Rights Act, the most notable legal restrictions on medical screening of applicants are contained in the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973.

WHEN THEY ARE PERMISSIBLE

In Illinois, pre-employment medical and psychiatric examinations are permissible if they are conducted according to the standards established in the joint Illinois Department of Human Rights/Human Rights Commission's interpretative rules on handicap discrimination.  The Illinois law uses the term "handicapped", not "disabled".  These standards are:

1. A physical examination requirement must be applied uniformly to all applicants regardless of disability.

2. The physical or psychiatric examination should be the last evaluation procedure to which applicants are subjected.  Interviewing and testing should be conducted before physical/psychiatric examinations are required, unless the employer can show that the other evaluative procedures are more costly or burdensome than the physical/psychiatric examination.  Of course, under the ADA, medical exams can not be given until after a job offer.

3. The results of the physical/psychiatric examination must be available to the applicant upon request.  Reasonable accommodation should be explored if the results of the physical/psychiatric examination make it appropriate.

USE OF LOWER BACK X-RAYS IN EMPLOYMENT SCREENING

Physical examinations should not be used to disqualify applicants whose conditions merely pose a risk of future injury.  Today, medical experts question the value of lower back x-rays in predicting the likelihood of future injury.  Employers should be careful not to disqualify applicants on the basis of lower back x-rays unless injury or disorder of the back exists and the evidence is convincing that the applicant would be unable to perform a specific job safely and efficiently.  Also, let's not forget that both Illinois law and the Americans with Disabilities Act (ADA) require reasonable accommodations for those who are disabled.

SUGGESTIONS FOR SELECTING AN M.D.

In selecting a physician or psychiatrist to test applicants, you should consider the physician's specialty and qualifications for making occupational placement decisions.  Once selected, inform the physician about the demands of the job(s) in question.  Request the physician to be as specific as possible in making recommendations.  That means avoiding vague language such as "no heavy lifting" or "light duty".

JOB OFFER LETTERS

After an applicant has been selected, some employers use an offer letter.  These letters can contain language that provides the new employees with more employment rights than the employer intended.

The following factors should be considered:

• Optimistic statements about the future, or failure to address what will happen if the employee is terminated can be the basis for contractual claims for wages and bonuses for periods after the employee's termination.  To avoid this, any provision of the letters that deals with compensation should clearly state that the employee is an at-will employee and that all payments to the employee are conditions on continued and satisfactory job performance.

• If an offer letter implies or contains language establishing a definite term of employment ("We look forward to you working in the position of unit manager for the next 3 years"), this may be considered an employment agreement.  the employee may claim that he or she is guaranteed a term of employment or is subject to termination only for cause.  The letter should contain clear language emphasizing that the employee will remain an employee at-will.

Job Descriptions & Advertisements

SAMPLE FORM: Job Requirements Checklist to Help Determine What You Expect of the New Employee

Checklist to help you quantify the physical and mental abilities that the job you are creating will require.

SAMPLE FORMS: NR Next: Sample Job Descriptions BY CATEGORY

SAMPLE FORM: Find Law: Job Description (Ready to Customize)

File contains a sample form that may be used to create a position description and includes examples that spell out, in detail, the duties required of a variety of positions.

SAMPLE FORM: Find Law: Sample Job Analysis Questionnaire

COMMENTARY: CCH Business Owner's Toolkit: Avoiding Discrimination in Job Ads

COMMENTARY: HR Next: Hiring Employees: What should you know BEFORE you begin the Hiring Process

COMMENTARY: Find Law: Job Advertisements

Nuances in an ad can be used as evidence of discrimination against applicants of a particular gender, age or marital status.

COMMENTARY: Find Law: Advertisements & Brochures

COMMENTARY: Find Law: Job Descriptions

While you are not legally required to do so, consider writing a job description for each position. This will make the hiring process more objective, which in turn will reduce the possibility that you can be successfully accused of discrimination.

Job Applications & Interviews

SAMPLE FORM: Find Law: Sample Interview Script: What to Ask & What to Tell an Applicant

SAMPLE: HR Next: Application Form

CHECKLIST: NR Next: Application Form Checklist

COMMENTARY: Find Law: Is Your Employment Application a Danger Spot?

The employee selection process is responsible for more discrimination charges than any other area of employment practice. Only basic questions regarding an individual's personal, educational, and employment background are permissible.

COMMENTARY: Find Law: Interviews

COMMENTARY: Find Law: Discriminatory Interview Questions

Questions you could ask in an interview twenty years ago might now be illegal.  Employers may only consider applicants as they presently are, not as they were in the past or may be in the future.

COMMENTARY: HR Next: Why Have a Well-Written Application Form?

COMMENTARY: HR Next: Designing an Application Form that will Lead to Better Candidates

Employee Hiring

SAMPLE FORM: Find Law: Employee Hiring Package: Application Form, Disclaimer of Implied Contract, Fair Hiring Documentation Form

SAMPLE FORM: Find Law: Sample Information Release Authorization: Ready for Applicant to Sign

COMMENTARY: HR Next (9/2000): Avoid Disaster: Find Out Who You're Hiring

COMMENTARY: INC. Magazine, Dr. Pierre Mornell (3/98): Zero Defect Hiring

Excerpt from his book, "Hiring Smart".

COMMENTARY: INC. Magazine/NOLO: Legal Hiring Practices FAQ

COMMENTARY: Business Week (6/97): Would You Hire this Person Again? Checking out Job References

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