How can you avoid legal liability in the recruiting process?

Discrimination

Unlawful discrimination occurs when an employer makes employment decisions on the basis of personal characteristics protected by law. Think race, sex, age, religion, national origin and disability. Individuals who share such characteristics are often referred to as members of a protected class.

Discrimination is all about making employment decisions based on factors that have nothing to do with a person's ability to do the job. Yet discrimination in the workplace is both a historic fact and a continuing problem. Whether intentional or unintentional, employment discrimination is against the law and just plain wrong.

Intentional discrimination, also known as disparate-or differential-treatment, occurs when people are treated differently specifically because of a protected characteristic-such as race, sex, national origin, religion, age or disability.

For example, an interviewer may not suspect she has any prejudice against men or women. She may unconsciously believe, however, that men are better suited to work in sales because guys are really competitive and can sell better. On the other hand, she may sincerely believe women are more likely to succeed in customer service because women listen better and relate well to others. Thus, when looking to fill a position in sales, the interviewer looks for a man. The same is true for women and the customer service department.

Intentional discrimination need not be conscious to be intentional under the law; it merely means that individuals are treated differently because of a protected characteristic.

Unintentional discrimination, also known as disparate-or differential-impact, focuses on practices with discriminatory consequences. It occurs when a neutral practice has the effect of discriminating against people who belong to a protected class.

For example, a window cleaning service specializing in skyscrapers requires its window washers to have a high school diploma. But having a diploma has nothing to do with the ability to wash windows, which is the only duty of the job. If members of a certain race or sex in the community where the service operates are less likely to have a diploma, the requirement may be said to have a disparate impact on members of that race or sex.

Discrimination laws forbid the use of certain protected characteristics when making a hiring decision. Since it's difficult to prove that the inability to get a job is due to membership in a protected class, the courts have developed a system that allows discrimination to be inferred. Therefore, you must be careful to avoid even the appearance of discriminatory decision-making.

For example, an African American female arrives at her interview for a secretarial position dressed in jeans with holes in them, a tee shirt, and scuffed tennis shoes. The interviewer takes notes at the interview and, rather than noting what she was wearing, simply writes wrong appearance. This comment could easily be mistaken for a remark about race rather than attire when she sues a few months later over not being hired.

What is negligent hiring?

Negligent hiring occurs when an employer hires a person it knows or should know is so unsuitable for a job that he or she poses a threat of harm to coworkers, customers or property. It is based on an employer's failure to uncover a job applicant's incompetence or unfitness by checking references, criminal records or general background. When hiring, you're under a duty to act in a reasonably safe manner.

The extent of the duty may vary with the circumstances. Employers should conduct a reasonable investigation into a prospective employee's fitness. The extent of the inquiry will depend upon the nature of the position, the cost and difficulty of obtaining information, and the reasonable and customary practices in the industry. For example, jobs that pose the greatest risk to others, like law enforcement or security work, or that involve working with vulnerable clients, like children or the elderly, require the most extensive background checks.

An applicant may pose a risk because:

1. the applicant is not qualified for the job, or

2. the applicant has done something in the past that would have significant consequences if it happened again.

Ask yourself:Would a reasonably safe manager investigate this potential problem about an applicant before hiring the applicant?

Avoiding unintended employment contracts

Making or breaking contracts occurs most often by promising an applicant something you may or may not be able to deliver on, like saying You'll have a job for life. Or your organization may have existing contracts that you don't know about, perhaps with a labor organization or the government. A hiring decision may inadvertently breach that contract if its existence or terms are unknown to you.

The biggest danger with contracts is that, as a member of the management team, you may unwittingly obligate the organization. If you think about it, can you really promise someone that if you work hard you will have a long and successful career here? How can you be sure there won't be an organizational downsizing, or that a particular position won't be eliminated?

Another common problem is making a hiring decision that doesn't conform to the terms of an existing contract. Following two simple rules should help you avoid making or breaking contracts:

1. First, don't make promises that you cannot or will not keep.

2. Second, find out about any existing contracts before you recruit.

<p>Inappropriate questions asked during an interview, the wrong comments penciled as notes, or even a promise made in haste to an applicant, could land your organi</p>

How can you avoid legal liability in the recruiting process?

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