Lawsuits result from hiring practice

Lawsuits resulting from the hiring process are avoidable
Reprinted courtesy of Business First, week of March 10, 1997.
Written by Bill Bellis.

As a business owner or manager, you have enough problems to worry about without having to deal with a lawsuit brought by a job applicant contending to be the victim of discrimination.

In the staffing industry, we have become acutely aware of the many pitfalls in the hiring process. Sometimes even the most innocent sounding question on an application or in an interview can lead to a lawsuit, particularly from an unsuccessful job applicant.

You are prohibited from discrimination in hiring on the basis of age, sex, race, color, religion, national origin, ancestry, physical handicap, sexual orientation or military status.

To protect yourself, be sure to avoid these topics in your employment applications, and never ask about these subjects in your employment interviews. Talk about the applicant's job skills, previous work experience and the position that you have open.

If you have a job applicant who is unable to fill out an employment application due to blindness or a physical disability, The Americans With Disabilities Act requires that you provide an alternate application process for the disabled person. This act also makes it clear that employers may not require a physical examination prior to hiring.

Under the Civil Rights Act, all applications must be retained for six months after the application is filed. The Age Discrimination in Employment Act requires you to keep applications for one year.

State laws sometimes add more confusion. Bottom line: draft a policy with an HR professional, then review it with your attorney.

Finally, don't deviate from your policy. Mark retention dates on applications and purge your files regularly. Continually monitor new regulations, rules and laws and make changes as necessary.

All questions on your pre-employment application should be designed to elicit information that is job related and necessary for successful performance of the job.

You may ask about job skills, education and employment history. You may not ask about number of children, health status, union membership or religious affiliation.

To determine the applicant's communication skills, you may ask the applicant for a writing sample on the application. For instance, you may ask the applicant to write a paragraph about career goals or problem solving - "Describe a problem that you had in a previous job and how you solved it." You should include a statement on your application that makes it clear that the application is not a promise of employment or an intended contract. A good place for this is right above the applicant's signature line.

Be sure that you require each applicant to certify as to the completeness and truthfulness of the information provided and that you get permission to check references.

Clear this application with your legal advisor or a skilled human resources person.

An employment interview should be a well-planned, structured conversation. Simply asking random questions to "get to know the person" is risky and will not produce consistent results.

We recommend that our clients develop a written list of questions or topics and that they stick to it.

This will help insure that you don't skip any important questions and that you don 't stray into uncharted waters which could result in litigation from a disappointed applicant.

What questions can you ask? Ask what you need to know to determine if : applicant has the skills to do the work.

Here are five suggestions:

What are the applicant's career goals?
What is the applicant's education? Previous work experience?
Skills and aptitudes for the position?
People skills - ability to get along with co-workers?

Don't ask if the candidate is a home owner, number of children, club or church memberships, place or date of birth. Don't ask about health status or physical disabilities.

You may ask about ability to lift a certain amount of weight, but only if it is a job requirement.

Take notes discreetly during the interview. Immediately after the interview, review your notes and write down your impressions.

Considering the potential legal problems in hiring process, many companies are reducing their risk by outsourcing some of this responsibility. A professional staffing organization will handle the application procedures while leaving the ultimate decision of whom to hire to you.
Unfortunately, the laws related to hiring of employees are becoming more and more numerous and complex every day.

Should a lawsuit be threatened, your best defense will be that you have kept abreast of employment laws, developed and implemented nondiscriminatory hiring procedures, and that your well-documented files reflect your nondiscriminatory hiring practices.

This article is meant to be only a general overview of employment problems.

Check your local and state laws, and when in doubt - consult an HR professional or your attorney.

Bill Bellis is Chairman of AHEAD® Human Resources, a professional employer organization in Louisville.