Employment Process Manual, Advertising, Recruting and Interviewing
- Unlawful to indicate a preference in terms of any protected category.
- Should contain equal opportunity employer notice.
- Should state that accommodations are available upon request.
- Advertise the job qualifications and duties, not the type of person being sought (e.g., young college grad or mature person).
- Be careful about mandatory qualifications such as high school diploma or a driver's license which may not be actually job-related and consistent with business necessity.
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- Arrest and conviction records should not be used to screen out individuals and, in fact, felony convictions, pleas of nolo contendere, or participation in pretrial diversion programs with respect to felonies are the only category of criminal offense which can safely be considered in screening out an application. Even felony convictions under case law should be somehow job-related and other extenuating circumstances should be taken into consideration in deciding whether or not the conviction should be used as a basis for not hiring an individual for a certain position. However, under EEOC guidance, an arrest record for behavior which appears to be job-related may lawfully be a trigger for further inquiry into the person's character and suitability for a particular position.
- Employers are entitled to obtain credit reports concerning employees, however, pursuant to the Fair Credit Reporting Act, whenever an individual is denied employment, even in part, because of information contained in a consumer credit report from a consumer reporting agency, the employer must advise the individual and supply the name and address of the agency. Furthermore, credit worthiness should not be a basis for denying employment unless it can be demonstrated that this is somehow job-related and backed by business necessity. Thus, credit problems should be used as part of the job decision or the hiring decision only where serious credit problems could reasonably be expected to adversely affect the person's reliability or performance of the job for which they are applying.
- High school diplomas and other minimal educational requirements. The EEOC and most federal courts have held that high school diplomas, and in some cases even college diplomas, as a prerequisite for certain employment positions are unlawful unless the employer can demonstrate that the degree or diploma accurately demonstrates a suitability to perform the task in question and that all or substantially all applicants who do not have the diploma or degree are unable to perform the task at issue.
- Pre-employment testing. Employers may legitimately conduct agility, skill, intelligence or ability tests, but must do so within the limits of the Americans with Disabilities Act (ADA). Any such test must be job-related and consistent with business necessity in terms of predicting successful performance of the job.
- Reasonable accommodations must be made for individuals with disabilities to take such tests.
- The ADA requires that any examinations or performance tests be offered in a place and in a manner which is accessible to individuals with disabilities.
- Employers must make accommodations when an applicant informs the employer in advance that an accommodation will be necessary or as soon as an employer becomes aware of the need for an accommodation.
- The test must accurately reflect the agility, skill, intelligence or ability which is necessary for performance of the job tasks at issue. Thus, an applicant cannot be required to demonstrate a proficiency which far exceeds that which would actually be required in the performance of the job since such a test might tend to screen out individuals with disabilities or have an adverse impact on certain minority groups.
- Employers may require applicants to demonstrate the ability to perform specific job-related functions and may ask applicants to describe or demonstrate how they would perform the essential functions and marginal functions of a job with or without reasonable accommodation. Any such request must be made of all applicants in the same job category.
- If such a test will be required, the advertisement should probably include a reference to the test or job demonstration which will be part of the hiring process and applicants should be asked to inform the employer of any reasonable accommodation needed.
- Employers may not generally inquire about an applicant's need for reasonable accommodations and this is true even if the applicant voluntarily discloses the need for a reasonable accommodation to perform the job unless the accommodation is requested as part of the pre-offer job demonstration.
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- Carefully review the application form and any other application materials prior to interviewing. Be sure to ask questions about any suspicious information on the application or the resume such as tendencies to job-hop or gaps in employment history.
- Be sure to provide accommodations, if requested, such as wheel chair accessibility to the site of the interview, assign an interpreter for a deaf person or a reader for a blind person, if appropriate.
- No questions may be asked during the interview about a person's disability; even an obvious disability. If an applicant volunteers information about a disability, interviewers should still nevertheless not ask questions about the disability unless it is one which would appear to interfere with the performance of the job in which case the employer may ask the applicant to demonstrate or describe how the applicant would perform that function.
- Inquiries during the interview should remain focused on the applicant's ability to perform the job with or without reasonable accommodations.
- No inquiries should be made with respect to an applicant's union membership, activity or sentiments, religion, or any other protected category such as marital status.
- Questions may be asked about the individual's ability to meet reasonable attendance requirements or the applicant's ability to work overtime or on the weekend, if in fact, the job at issue actually requires such a commitment.
- Interviewers should never make any promises to an applicant about being hired or being recommended for hiring. Similarly, no promises or representations should be made about the term of employment, promotional opportunities, or any other career opportunities.
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Hot legal issues and current case trends regarding recruiting practices
- The two fastest growing areas of litigation which focus on recruiting practices are claims of violation of the ADA in hiring and negligent hiring claims.
- Claims by disabled applicants focus on both the issue of failure to hire because of a disability and the failure to hire because the applicant is "perceived" to have a disability when, in fact, they may not.
- Negligent hiring claims result when an employee, student or visitor is injured in the workplace by another employee who the victim alleges the employer knew or should have known had dangerous propensities. These cases focus on the reasonableness of the employer's pre-hire screening of employees who may commit violence in the workplace.
- With respect to the ADA, one of the most difficult areas of litigation for employers to deal with is the claim that an employee was not hired because they were perceived to be disabled. Such claims may result when an employer refuses to hire someone because of obesity (which may or may not be a "disability" protected by the ADA depending upon whether the characteristic results from a medical condition) or because the individual actually has a physical limitation of some sort which the employer believes, without a reasonable basis, will adversely affect the individual's ability to perform some function of the job.
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- Personal notes about applicants should be kept separately from official institution documents which will become a part of the applicant's file and probably should be destroyed after the selection process is completed since these personal notes are subject to discovery in litigation.
- Do not make notes about an individual's characteristics which relate to any of the protected categories even if they are merely innocent doodlings intended to help you remember one applicant and distinguish them from the others. In the past, such notes have come back to haunt employers in employment discrimination litigation. Thus, avoid notations such as distinguished older gentleman or cute perky blond or left prior job due to pregnancy complications.
- Do focus on the individual's suitability for the job. This includes exploring more than just the applicant's technical competence, but also personality traits, attitudes and life experiences.