Bottom Line: Protected Classes
Employers must always be mindful of the protected classes as they apply to all aspects of employment, from the recruitment through the termination of an employee. Those classes are race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Basically, any aspect that defines the character of a person is off limits to discrimination from employers. A great place for employer resources as it applies to legal employment practices can be found at the website for the US Equal Employment Opportunity Commission (www.eeoc.gov).
From the very first advertisement for a job opening, employers must ensure that the goal of filling the job opening is left open to all applicants. Something as minor as posting a position for a certain gender or “recent college graduates” has the potential to discourage the other gender and people over the age of 40 to apply, which of course may end up being a legal violation.
The only time at which some traits can be identified in recruitment postings (i.e. gender, language requirements) is if the requirement is a Bonafide Occupational Qualification (BFOQ). This requirement, for example, could be for a restaurant who is seeking to hire individuals who speak a specific language (which typically denotes people of that origin) in order to maintain a certain dining environment, should that language apply to the restaurant itself. Beyond BFOQ’s, employers should steer clear of identifying which candidates they want to interview. The bottom line is, if they’re qualified for the position, interview them.
Some employers elect to end their recruitment with “women and minorities are encouraged to apply,” which may be all well and good, but, again, it ends up identifying a preference for candidates that could eventually be contested if the employer ends up hiring a slew of females and minorities. It is recommended that employers simply use “Company X is an equal opportunity employer.” This sends a more neutral message, and does not show any type of agenda, hidden or otherwise, as to the type of candidate they are seeking to employ.
During the application and hiring process, once again, the employer must take care not to move into any areas that may be discriminatory in nature. One of the areas more prone to such mistakes is the interview itself.
Questions such as “Are you married?” and “How old are you?” are landmines that could immediately result in a discrimination complaint. Employers are advised to establish a standardized list of questions that are approved by an HR authority or by an outside employer entity such as an employer’s association, who are designed to assist companies with compliance with current HR practices. Interview questions and skills tests should be generated directly from the actual needs of the job position, and should never account for any of a person’s characteristics.
I recently dealt with this issue in an interview (ironically, for an HR position) in which the interviewer (also, ironically, an HR Professional) noticed I was a veteran. She began by thanking me for my service (which is fine) but then asked me what my opinion was of the current conflict.
Being somewhat shocked but eager to get the job, I threw my opinion on the table and could visibly see her look of disagreement. It’s important to also remember that veteran status is also a protected class. Asking opinions about outside on-goings can quickly become a slippery slope into a potential lawsuit for discrimination.
Employers must also remember that if an applicant has a disability (the EEOC site cites the need for a sign language interpreter), the employer is bound to provide said accommodation unless the accommodation causes the employer “significant difficulty or expense.” Reasonable accommodation does apply not only to current employees, but future employees as well.
Keep It Simple
Using standardized job postings, interview questions, and salary ranges can reduce the likelihood of discrimination in application and hiring processes. Discrimination can be cited whether it is intended or comes as the result of negligence of the effects of a certain process, i.e. a skills test that has an unintended bias against older applicants.
While it is important for employers to identify applicants who are a good environmental fit for their workplace, they should basically treat any applicant as a sum of their documented experience found on their resume.
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