Nowadays every employer has to be an “equal opportunity employer.” And rightfully so. After all, our society was founded on the basic principle that all men are created equal.
Under our current laws, an employer may not deny employment to any individual based on race, sex, national origin, religion, age or disability. To avoid a charge of discrimination, the employer must ensure that all aspects of the pre-employment process are nondiscriminatory.
That task sounds easy enough in theory. However, it’s not so easy in practice. In hiring, employers universally rely on questions that people answer on job application forms and in interviews. The employer must be careful in choosing the right questions. Many questions that once were typically asked are now taboo.
Any question that could be viewed as discriminatory can lead to trouble. The fact that the employer meant no harm is not a defense. To illustrate this point, I have provided
some “don’t ask” questions. I have also added some questions that can be asked to obtain useful information in the right way:
■ Don’t ask applicants about their sex. Rather, ask if they have the physical ability to perform all of the job duties of the employment position.
■ Don’t ask about their religious affiliation or their affiliations with other organizations, clubs, societies, etc. Rather, ask if they belong to any organization that would prevent them from performing all of the job duties on the days and hours of the employment position.
■ Don’t ask their age or date of birth. Rather, ask if they are old enough to carry out the job duties — i.e., old enough to drive or serve alcoholic beverages.
■ Don’t ask about their medical history or whether they have physical conditions, impairments or disabilities. Rather, ask if they have the mental and physical ability to fully and properly perform all of the job duties listed.
■ Don’t ask about their marital status or whether they have children. Rather, ask if they can work all of the days and hours of the employment position.
■ Don’t ask if they have been arrested. Rather, ask if they were convicted of a felony, and the disposition of that conviction.
One more thing. If an employer uses a third party to conduct a background check, he or she must comply with the provisions under the federal Fair Credit Reporting Act. Employers rely on consumer reports and investigation reports in this process, and the act requires them to tell employees about these background checks.
Charges of discrimination are relatively easy to make and can be expensive to defend. All employers are urged to review their pre-employment process to ensure compliance with current law.
Since discrimination law is complicated, the services of a attorney could be very beneficial.
Printed in Four Rivers Business Journal (Paducah Sun), July 2008.