By Michael Cormier
What information is used [by hiring personnel], and how it is weighed in the final decision, must be considered. In other words, decision makers have to analyze and evaluate, not just follow the black letter of the law.
In my last post, the above comment was meant as a caveat to all hiring personnel: learning statutes—even memorizing them verbatim—is not enough. Understanding the underlying aim of a statute, and the practicalities of meeting that aim, is just as important.
This is never truer than when looking into a job applicant’s background. It is always a good idea to have a background check performed using a well-established, reputable firm like The Hire Authority (508-230-5901; www.hireauth.com). But once that background report is obtained, knowing how to use the information without violating not only the letter but the spirit of federal and state laws is just as important.
Last time, we looked at some labor history and the legislation that was enacted as a result. This time, I would like to offer some pointers on how to work within the goals and expectations of two of those statutes.
Title VII of the Civil Rights Act of 1964 and the Americans With Disabilities Act (ADA) of 1990
The Civil Rights Act was passed as a result of seminal court cases and the Civil Rights movement, all of which sought to cut down the old discriminatory Separate but Equal approach. Thus, in hiring, one is expected to wear blinders when it comes to race and sex, to name just two groups.
We can all agree this makes sense. The right person for the job is the right person for the job, right? Yet it’s not always that simple. Even the appearance of discrimination can be—and all too often is—interpreted as de facto discrimination.
Thus, for example, a company might find itself in trouble if it asks all of its interviewees how they handle childcare vis-à-vis working overtime. Even if this question is asked of everyone—male, female, child-rearing age, not child-rearing age—the end result is likely to be skewed. Women in their twenties and thirties are more likely to end up with child rearing responsibilities even in this day and age, and if more men get hired for that position—for any reason at all—watch out! Your seemingly innocuous question might be seen as a pretext for weeding out employees who seem like they’d expect more time off than others—young women.
Take for example another question that once was prevalent: have you ever been arrested? Some states ban this question altogether, but even where it is not illegal to ask it, trouble can ensue. Certain ethnic groups are much more likely to have been arrested than others. Basing a decision on an arrest record alone (or even asking the question harmlessly), can lead to a discrimination suit.
The pitfalls are even greater when it comes to the ADA because employers aren’t always well versed in what the term “reasonable accommodation” actually means. For example, it may seem perfectly appropriate to ask a quadriplegic in an extra-wide electric wheelchair how they will get to and from work, and into and out of the building. But it’s not—at least at the hiring stage. If the applicant is qualified in every other way, reasonable accommodation must be made under the ADA (a wheelchair ramp, wider doorway, extended desk, etc.). You can’t just reject him because you can’t see how he’ll be able to get around.
What do all the above examples have in common? For starters, they seemed harmless when asked—either they were asked of every candidate, or were meant to seek information that might be necessary to have later on. What they also have in common is that they can target certain groups, sometimes without the hiring person even realizing it.
So, for example, when rejecting an applicant because of her poor credit history and high debt ratios, one should ask himself whether, and how, that credit history might affect job performance. If it’s embezzlement you’re worried about, then it’s probably reasonable to delve into her poor financial record if she is going to be handling company money. But if she’s applying for the receptionist job, it probably isn’t going to mean much.
And that’s what the latest statutes and regulations are aimed at: making hiring personnel stop and think about why they’re asking these questions in the first place. And, more important, how the answers might really impact job performance.
Once upon a time, it was okay to reject an applicant for having an arrest record. A security guard applicant who was arrested for a barroom fight, but was later acquitted, might still find himself rejected out of hand. Or a paraplegic who applied for a travelling sales job might be rejected because it was assumed he couldn’t handle the travel.
Those days are gone. Targeting certain groups is forbidden, of course, but even accidentally targeting a certain group will get you into trouble. So before asking for information, ask yourself two questions: 1) do I really need this information?; and 2) will getting this information affect one group greater than another, and if so, can I pursue my goal in a way that it doesn’t affect just that one group?
That is not to say some questions that are seemingly discriminatory can’t be asked, so long as they are for legitimate reasons. The point is, the EEOC has gone to great lengths to level the playing field by forcing hiring personnel to think about what they’re doing, and not just look at the statute. The EEOC’s goal in all of this is to be fair. No one is perfect, and everyone deserves a shot based on their true ability to do the job safely and effectively. And sometimes background information obtained can obscure that goal during the hiring process.
Which isn’t to say background checks should be avoided. Quite the contrary. A background check by a reputable and experienced firm like The Hire Authority (508-230-5901; www.hireauth.com) is the first step in learning not only who the best candidates are not, but who they are.
Just be cautious about how that information is used.
The foregoing should not be construed as legal advice. Employers should always consult their own legal counsel for advice on labor and employment matters.