Anyone tasked with wading through stacks of resumes and talking to applicants lined up for interviews understands how frustrating and time-consuming hiring can be. It’s understandable that people in charge of hiring crave out-of-the-box solutions. But how far should employers go in their efforts to weed out applicants who clearly won’t be a good fit? Can a quick list of questions adequately (and legally) narrow the field and yield a manageable number of candidates? 
The CEO of a marketing firm in Connecticut thinks he’s found the answer for his organization. He’s developed a “snowflake” test designed to tell him what he wants to know about job candidates before he spends his time on them. He’s unapologetic about the test’s lack of political correctness; anyone aspiring to work for him who doesn’t like the test need not apply. But attorneys well-versed on employment discrimination claims point out some red flags in his approach.
Kyle S. Reyes, president and CEO of The Silent Partner Marketing, wrote about his 30-question short-answer and essay-style test in a March blog entry for the conservative New Boston Post. He admits the test will “give HR managers and the PC Police night sweats.” He says his test is aimed at weeding out “whiny, needy, entitled little brats,” and he says it lets him know if an applicant is “a good fit” for his company’s culture.
Here are a few of the questions:
- What are your feelings about employees or clients carrying guns?
- How do you feel about police?
- When was the last time you cried and why?
- What does “faith” mean to you?
- You see someone stepping on an American Flag. What happens next?
Legal red flags
Are the questions out of line? Mark S. Schickman, an attorney with the Freeland Cooper & Foreman LLP law firm in San Francisco, points out that the first rule of inquiries in the hiring process is that a question should be job-related, and the snowflake test violates that rule.
Schickman cites the question about crying. “What is the job-related reason for that? I can see someone building a variety of claims on something like that.” Likewise, the faith and political opinion questions present problems, he says.
But Schickman agrees with Reyes that employers have to take steps to find good employees. “You can guard against almost anything in your workplace except a bad hire,” he says, but employers who resort to the kind of questions included in the snowflake test are “poisoning” their own process.
Many employers consider “culture” and “fit” in their hiring decisions, but they have to be careful, Schickman says. “You can have a culture of honesty. You can have a culture that does not tolerate violence or bullying. You can’t have a culture which dictates other people’s values,” he says.
For example, if an employer has a group of men who work together well and get along great and the most qualified person for an opening is a woman, the employer can’t not hire her because she would change the culture. “You will lose that case 10 times out of 10,” Schickman says.
Susan Fentin, an attorney with Skoler, Abbott & Presser, P.C. in Springfield, Massachusetts, agrees the snowflake test poses legal concerns. “The risk here is that short essay answers will undoubtedly reveal more about an applicant than is prudent to know,” she says.
For example, applicants might reference their race in a question such as “how do you feel about police?” If the test screens out people before interviews, the applicants could claim that they were denied an interview based on race. “I’m not sure what answers would ‘pass’ this test,” Fentin says.
As for basing hiring decisions on culture and how someone may fit in an organization, Fentin urges caution. “I would be very careful making a decision based on ‘fit,’” she says. “It can be considered code for ‘people like me,’ which inevitably screens out employees of different races, sexual orientation, creed, etc.”
What to do
Like the CEO who came up with his snowflake test, many employers need a way to narrow the field when filling positions. What’s the legally sensible way to screen candidates?
“Do everything that you can to get something objective and job-related,” Schickman says. Sticking to job-related questions is a more accurate and safer route, he says. “My advice always is doing that.”
Fentin agrees. For example, if an employer is looking for a way to judge applicants’ writing ability or their ability to think on their feet, “which would seem to me to be a legitimate basis for making an employment decision, it could pose questions related to the job for which the employee is applying,” she said.
For example, a question to someone applying for a customer relations position might pose a scenario where a customer is rude to the employee. Applicants then could be asked how they would respond to the customer and what they would recommend to their supervisor.