When Hiring Slows, Hiring Claims Climb

It may seem like easy times for recruiters, but there’s a catch—rejected candidates are filing claims if you trip up. What’s the best way to protect yourself from hiring claims? It’s a simple rule, says Rappaport: Make sure that everything you say and do—and require—is job-related.

Mike Moye and Sandra Rappaport drove this point home to attendees at the Employer Resource Institute’s recent California Employment Law Update conference. Moye and Rappaport are partners at the San Francisco office of law firm Hanson Bridgett LLP.

According to Rappaport, ensuring that inquiries and requirements are job-related makes it less likely that the hiring process will be challenged as discriminatory or invasive of an individual’s privacy.

Off the Mark

The pair offered two typical examples of managers’ off-the-mark questions:

Say the job for which you are hiring requires physical activity, such as lifting heavy objects, says Rappaport. The interviewer asks each applicant, "Do you have a history of back or neck problems that would interfere with lifting?" Managers think it’s a reasonable question, Rappaport says.  And it sounds job-related.

However, Rappaport says employers should think about what information they are getting and what they plan to do with that information. Asking applicants if they have back problems won’t provide the information needed to determine if the person can lift. But it will expose the employer to potential liability if the applicant later charges discrimination on the basis of disability. The better way to get at the information, says Rappaport, is "This job requires you to lift 25 pounds throughout the shift. Are you able to do it?"

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That question, asked of all applicants, is fine, and gives you just the information you need.

As another example, says Rappaport, how about a young female applicant  being considered for a demanding job. The hiring manager asks, "Do you have small children?" Again, the manager finds this question reasonable, and defends it on the grounds that the job is demanding and it’s important to know how someone will juggle childcare responsibilities with work. But, said Rappaport, the child issue isn’t job-related and thus, the question could be the basis for a gender bias lawsuit.

The better approach, she says, for that manager to elicit what he needs to know about job commitment is to say, "Here are the job’s requirements: [describe the job’s hours, travel requirements, and so on]. Are you willing and able to meet those requirements?"

The point is that in both cases, there is an effective way to get the information you need without risking lawsuits.

Multiple Interviewers

Using multiple interviewers is often a good idea, says Rappaport, but it’s even more likely to get some of the managers into territory that you don’t want them in. They’ll think, "I don’t want to look like an idiot by asking the same questions about qualifications that the first two interviewers asked, so I guess I’ll ask the applicant about family, recreation, hobbies, clubs, and religious preferences."

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That’s dangerous territory. How do you steer the interview process along the job-related track when you have a number of people in your organization involved in the interviews? Develop an interview plan, says Rappaport. Avoid just "winging it," which leads to inconsistency and inappropriate questions being asked.

In tomorrow’s Advisor, we’ll cover more about the interview plan, and about a key factor in preparing it—an up-to-date job description.