HR Management & Compliance, Recruiting

Making a Slam Dunk in Hiring and Promotion Decisions

Here in O’Town, we are thrilled that the Magic made it to the NBA playoffs—and at the time of this post, have won their first game against the Toronto Raptors. In basketball, of course, it’s easy to determine who’s the best of the best—just look at the scoreboard. At your business, however, making hiring and promotion decisions is less objective and more complicated, so here are some tips—brought to you by the Equal Employment Opportunity Commission (EEOC)—to help you make a slam dunk and avoid fouls when assembling your dream team.


Source: Federico Zovadelli / shutterstock

Set Up Your Shot

First and foremost, you should ensure that all employees involved in hiring and promotion decisions understand their responsibilities to prevent discrimination. At a minimum, this should include:

  • Explaining your hiring and promotion policies and practices to employees involved in making these decisions, including employees who accept applications.
  • Ensuring that hiring and promotion decisions are not based on protected characteristics such as race, color, religion, sex (including pregnancy), national origin, disability, age (40 or older), or genetic information (including family medical history).
  • Consistently screening applications by applying the same standards to everyone who applies for the same position.
  • Providing reasonable accommodations to applicants or employees who need assistance because of their medical condition or religious beliefs if required by law. For example, you may need to help a person with carpal tunnel syndrome fill out an application, or you may need to reschedule an interview originally scheduled for a religious holiday if the applicant’s religious beliefs prevent him or her from working on that day.
  • Justifying the hiring practices used to exclude specific applicants. For instance, if you use physical tests or background checks that have a particularly negative effect on applicants or employees of a protected class, you must be able to show a legitimate business need for using the practice.

Be Wary of Intentional Fouls

Once you’ve made it past the application stage, it’s time to start interviewing applicants. When you do, keep in mind that there are certain questions that you cannot or should not ask, including:

  • Questions about race, religion, or ethnicity, such as “Are you biracial?” or “Which church do you attend?” or “What language do you speak at home?”
  • Questions about age, unless used to verify that applicants meet any age-related legal requirements for the job.
  • Questions about pregnancy or plans to start a family, such as “Are you pregnant?” or “Do you plan to have children soon?”

According to the EEOC, some hiring practices may block individuals of a specific race, sex, religion, age, or disability status from being hired or promoted. For example:

  • Requiring that applicants be within a certain height or weight range may have an especially negative effect on female applicants.
  • Requiring that applicants pass a physical agility test may have an especially negative effect on older applicants.
  • Requiring that employees live within a certain geographic region may have an especially negative effect on applicants of a certain race.
  • Broadly excluding applicants with criminal records may have an especially negative effect on applicants based on race or national origin.

Avoid Lane Violations

Hiring practices that tend to set some individuals at a disadvantage more than others are not automatically illegal, but you may need to take additional steps to avoid potential problems. Specifically, you should ensure that hiring practices that place applicants of a specific race, color, religion, sex, national origin, or disability status at a disadvantage are necessary for safe and effective job performance. For example, in basketball, taller is almost always better, but if you have height or weight restrictions for a specific position, you must be able to show that the restrictions are necessary to perform the job safely or efficiently.
Additionally, you should not deny the ball to applicants who are 40 or older unless the job requirements are based on a reasonable factor other than age. For instance, if older applicants tend to pass a physical fitness test at a lower rate than younger applicants, ensure the test is reasonably designed and administered to achieve a legitimate business purpose (such as the speed, strength, or agility required to perform a job).
One last tip about hiring and promotion decisions: On the off chance an unsuccessful applicant or promotion candidate complains to the EEOC or your state’s civil rights agency, be sure you’ve retained copies of applications and any interview notes for a minimum of 1 year to establish the legitimate, nondiscriminatory business reasons you used to make the challenged personnel decision.

Nothin’ But Net

Whether you’re hoping to hire a point guard, a power forward, or a center, you should review your job requirements with a critical eye to ensure your selection practices serve your business needs without having an unfair (and a potentially illegal) impact on job applicants and promotion candidates. By doing so, you’ll get nothin’ but net as you build your dream team without running afoul of employment laws. When in doubt, call in your sixth man (an employment lawyer, that is), who will assist with a struggling offense and help you bring home the win.
Now, let’s get out there on the court and play ball. GO MAGIC!

Marilyn Moran
Marilyn Moran has been representing employers for nearly 20 years as a trusted advisor and experienced litigator. She is passionate about learning her clients’ businesses from the ground up and working with management and HR to solve problems and implement smart business solutions. In addition to litigating cases through the judicial and arbitration process, Marilyn provides advice and training on a wide variety of employment law issues, including discrimination, harassment, retaliation, wage and hour violations, and reductions in force. She also helps employers navigate the process of accommodating employees with disabilities under the ADA and managing employee leave under the FMLA. Find her on Twitter and LinkedIn.This article originally appeared on the EntertainHR blog.

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