Best Practices for hiring to avoid potential discrimination claims

Excerpted from a Troutman Pepper Blog by Shirley Akrasih

Hiring new employees — whether high school and college students looking for part-time work or recent graduates entering the workforce — can be challenging. One possible risk is that a job applicant could claim unlawful discrimination based on your decision not to hire that applicant, even if the claim is not valid. We offer the following helpful tips to consider as you conduct the hiring process:

1. Craft a detailed job description
Having a thorough job description in place provides a vital defense against potential discrimination claims, as it allows your organization to objectively outline the position’s specific tasks and requirements, while guiding you to assess candidates based on objective factors specific to the position. Ensure your job description does not exclude any legally protected group and include the statement: “We are an equal opportunity employer.”

2. Ask interview questions based on the job description
Interviews can present increased risks because they have a higher likelihood of veering from the given structure. Counsel your interviewers to actively avoid discussing matters unrelated to the job, such as topics surrounding family life, ethnicity, or religion.

Interviewers should ask each candidate the same questions that relate directly to the position’s tasks and requirements, while avoiding asking questions, such as the following:

• Are you married? Are you single? Do you have any children? Are you pregnant? Are you trying to have a family?
• What year were you born? When did you first start working?
• What country are your parents from? What is your background? Where were you born?
• Do you have a disability? Have you experienced any serious illnesses in the past year?
• What medications are you taking?
• Have you ever filed a workers’ compensation claim?
• Do you or any of your family members have a history of disorders or disease?
• Avoid all questions about race, ethnicity, religion, or gender identity.
• Be careful asking questions about arrests or convictions. Avoid questions relating to arrests if they are not directly related to the job or in states where it is unlawful to ask arrest-related questions. Also, avoid inquiring about convictions for jobs that are not security-sensitive, have no connection to the job, or in states where such questions are not permitted prior to a contingent offer of employment.

Note that, while questions about an applicant’s disability are unlawful, employers may explain the job requirements and ask a candidate if they are able to perform the job, with or without a reasonable accommodation and may ask a candidate with an obvious disability if he or she needs a reasonable accommodation to participate in the application process.

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