While legal problems can crop up during an employee’s tenure, the two events that carry the most legal risk for employers are the hiring and the departure of an employee.
Hiring discrimination lawsuits are particularly dangerous because the applicant doesn’t yet have a relationship with the employer and, therefore, is much more willing to sue.
To stay out of court, managers should build their hiring process around these principles:
1. Review job ads for traces of bias
If you write employment ads for new job openings, be aware that a few poorly chosen words could spark a discrimination case. For example, see if you can recognize the three problems with the following ad:
“Waiters/busboys. Looking for energetic, recent H.S. grad to work midnight shift at 24-hour restaurant. Great potential for growth. Apply in person or via mail to Ms. Willis, 100 Columbia Way.”
The three mistakes: (1) Using age as job-selection criterion (“recent H.S. grad”) violates the Age Discrimination in Employment Act. (2) The terms “waiter” and “busboy” are not gender neutral and could be viewed as discriminatory. (3) Requiring a high school diploma may be seen as discriminatory because it could be argued that a diploma is not a bona fide occupational qualification for this job.
2. Avoid discriminatory words in interviews
Federal and state laws prohibit discrimination on the basis of an applicant’s race, color, national origin, religion, sex, age or disability. Some state and local laws also prohibit discrimination based on factors such as marital status or sexual orientation.
Every interview question you ask should somehow relate to this central theme: “How are you qualified to perform the job you are applying for?” Managers usually land in trouble when they ask for information that’s irrelevant.
Examples: Are you married? How old are you? Do you have children? What are your day care plans? Do you own or rent your home? Have you had a major illness recently?
Best bet: Never “wing it” during interviews. Instead, create a list of questions and make sure each one asks for job-related information.
3. Don’t oversell the job
Comments like “This position offers lots of job security” or “You can work here a long time if you’re successful” are dangerous.
That’s because a spoken promise can carry just as much weight as a signed document. Courts may conclude that you entered into an “implied contract” if you directly or indirectly allude to that person’s long-term job security.
Spoken promises of job security can even supersede a written “at-will” statement, which says employees can be terminated at any time for any legal reason. That could crush the organization’s ability to fire people if needed.
4. Don’t show preferences during interviews
Provide only neutral comments until you’re ready to offer the job.
Why? Even one statement to a candidate hinting about who you think is the “most qualified” can show preference. Later on, that statement can be used in court as proof of your discrimination.
For example, in one court case, a manager told a woman during her job interview that she looked like the “obvious candidate” based on her experience. When the job was instead offered to a man, the woman sued. The court said such “mini-promises” could be evidence of sex discrimination.
Federal hiring laws
A patchwork of legislation protects workers and applicants from discrimination.
- Best known is Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on a person’s race, color, sex, religion or national origin.
- Employers must also comply with the Equal Pay Act of 1963, which protects men and women who perform substantially equal work from sex-based wage discrimination.
- The Pregnancy Discrimination Act of 1978 makes it illegal to discriminate against applicants or employees on the basis of pregnancy, childbirth or related medical conditions.
- The Age Discrimination in Employment Act of 1967 protects people age 40 or older from discrimination in hiring, firing, pay and perks.
- The Americans with Disabilities Act protects qualified disabled individuals from discrimination and mandates that employers make “reasonable accommodations” for disabled people.
