I’m up against an ethical brick wall here. I recently had an excellent candidate for one of our sales positions who was visibly pregnant. The hiring manager gave her a brief interview, then told me to reject her. He said, “Don’t send me any more pregnant women; they just get started and then they’re out for months.” I know, of course, that it’s wrong to turn down these candidates, but what kind of training do we need to make sure this type of discrimination—whether it’s because of pregnancy, age, sex, or whatever—doesn’t happen in the hiring process? — Reynolds B., Bakersfield
400+ pages of state-specific, easy-read reference materials at your fingertips—fully updated! Check out the Guide to Employment Law for California Employers and get up to speed on everything you need to know.
Almost every employee handbook ever written includes a statement that the employer hires the best-qualified candidate for each job regardless of race, color, religion, gender, disability, or other characteristics protected by law, such as being pregnant. If a manager decides not to hire an applicant because of the person’s pregnancy, not only is this employer’s policy violated but so is the California Fair Employment and Housing Act (FEHA) if the employer has five or more employees. Furthermore, FEHA extends liability to those individuals who engaged in the discriminatory conduct, which means the manager who made the decision could be liable. Federal laws also apply, including the Pregnancy Discrimination Act, a 1978 amendment to Title VII of the Civil Rights Act that protects pregnant employees from discriminatory actions based on their pregnancy status.
Hiring managers must understand the ramifications of their decisions and the possibility that an applicant may challenge a decision. Too often, decision makers assume that they can come up with some after-the fact rationalization as to why an applicant was not hired, thinking that it will never be an issue. In the scenario presented above, the manager may believe that his decision is based on a legitimate criterion that a pregnant employee at some point would not be able to perform all of her job’s workload demands. However, the manager would not have this workload concern if the applicant were not pregnant and thus, the decision not to hire is because of the pregnancy and is illegal.
Moreover, it is foolish to assume that the applicant will not find out why she was not hired. An applicant may know someone in the company with personal knowledge of who was hired and that person’s qualifications. With the growth of employee referral award programs, this becomes an ever more real possibility.
Another concern is consistency with interview questions. For example, a manager may believe that questions about child care are important to determine the applicant’s dependability and availability. However, only asking female applicants these questions will likely be problematic if males are routinely hired over females.
The best way to avoid these problems and, more importantly, to ensure that the best candidate is hired, is to have well-trained interviewers who use a structured interview process. Use a detailed analysis of each job to draft interview questions that are consistently asked of each applicant. This structured procedure keeps the scope of each interview focused on gathering information that is job-related and thus, valid and justifiable.
If more than one person is interviewing the same candidate, make sure that each interview is consistent and set up a system for rating the candidates. This will help guard against interviewers discussing inappropriate criteria after the interviews.
The success of a structured process depends on how it is implemented. Training the interviewers is the key. The training should include examples to demonstrate why personal, nonjob-related questions do not reveal important information. Simply providing a list of questions that should not be asked in an interview is not enough. In fact, the law does not prohibit an applicant from being questioned about a pregnancy or age. The reasons to avoid these questions are twofold:
- questions that are personal in nature do not reflect one’s ability to perform the job and are therefore not useful in making good hiring decisions; and
- later, perhaps in court, it is difficult to show that the information was not relevant to your hiring decision.
If possible, training should also cover the impact of hidden biases that can hinder the best decision making. These biases are often not based on protected classes, per se, but reflect geographic (e.g., the applicant is from the same part vs. a different part of the United States), educational (e.g., the applicant attended private vs. public school), or social class (e.g., the applicant has wealthy parents vs. little or no family support) preferences that are deeply ingrained.
One training workshop will not likely result in a perceptible shift in thinking. However, introducing these concepts to interviewers is important so that they have a heightened awareness and will guard against biases influencing a hiring decision. It will also bring the message home to truly hire the best qualified candidates based on the requirements of the job.
Mary L. Topliff is an employment law attorney and principal of the Law Offices of Mary L. Topliff in San Francisco.