Lawful Hiring Practices For Job Applications, Processes & Interviews

 Introduction

When hiring employees, there are many legal considerations that come into play for employers.  Among those are appropriate screening of applicants to ensure that there are no issues of discrimination, while at the same time balancing the hiring process to get the most qualified applicants who possess the best skills for the job.  The same anti-discrimination provisions in the law that protect employees from discrimination in employment based upon their status in a protected category apply to applicants under federal and state anti-discrimination laws.  For example, it is unlawful to refuse to hire an employee based upon his or her gender, race, religion, disability and similar legally protected categories.  These legal protections are based upon federal and state laws that make discrimination in employment unlawful, based upon certain protected statuses. 

Written Job Applications

In designing written job applications for prospective employees to complete, it is critical that employers not ask questions that will lead to an inference of discrimination in the hiring process.  For this reason, job applications should not ask for an employee’s age, race, religion or similar categories.  In general, job applications should be limited to basic contact information and relevant work experience as it pertains to the job for which an employee is applying.  For some types of jobs, there may be additional screening procedures required in order for an employee to be qualified for the particular position.  For example, this could include positions in specific industries that have legal requirements that must be met in order for an employee to be hired into a particular position.  There are also some jurisdictions that have passed statutes known as “Ban the Box” regulations.  These statutes make it unlawful for an employer to ask a prospective employee about his or her criminal history on a written job application.  The idea behind this is to limit potential discrimination against certain groups who have experienced a higher rate of criminal convictions or arrests than others.  These statutes were passed as a means to limit racial discrimination due to the higher arrest and conviction rates that were found to exist among certain racial groups.  This does not generally mean that prospective employers are prohibited from doing background checks after the initial interview and application process or after a conditional offer of employment has been extended. 

Interview Questions:

The same general rules apply to the interview process as to the written application process.  Employers cannot ask employees questions that may elicit information that could result in a discriminatory decision not to hire the applicant.  Among examples of this might be asking an applicant his or her age, what church the applicant attends or whether the applicant has any disabilities.  Thus, it is important for employers to have a guideline for interview questions, preferably in writing in order to ensure consistency in the application process.  As a policy matter, interview questions should be tailored to the discerning whether the applicant meets the criteria established in a written job description for the position in question. 

Job Related and Consistent with Business Necessity

The overall goal for the applicant and hiring process should be to recruit and hire the best employees for the job and those that possess the best skill set to match the position for which they are being interviewed.  In general, when employers focus their inquiries on this concept and in determining whether an applicant’s education, training and experience match well with the position in question, this will eliminate many of the pitfalls of the hiring process from a discrimination perspective.  Implementing written job descriptions for all positions helps to establish the necessary skills, physical abilities and related qualifications for each job for which an employer is hiring.  In conducting the application and interview process, tailoring questions to coincide with the written job description for the position in question is a good means for employers to keep the hiring process tailored to be job related and consistent with the needs of the business. 

Negligent Hiring

Another consideration in the hiring process which is juxtaposed to the concept of avoiding discrimination is ensuring that applicants do not pose a health or safety risk to themselves, other employees, customers or the general public.  Background checks, when legally allowed, may assist employers in limiting the risks of hiring an employee with areas of concern in his or her background.  There are some variations in state and federal law in the area of what type of information can be obtained in a post-offer background check.  The legal requirements of background checks can be complex and are beyond the scope of the information provided herein.  In addition, sometimes background checks are legally required in order for an employee to begin employment.  In other cases, employers conduct the checks to ensure that applicants do not add legal risk for the employer.  Most states recognize the tort of negligent hiring which is something that employers may be sued for if they have not properly conducted due diligence in the hiring process.  In general, this would apply when an employer failed to adequately investigate an employee’s background, and in this way breached the duty to exercise reasonable care in the hiring of its employees.  If the employer failed to adequately screen the employee and such a screening would have revealed information that the employee posed an unreasonable risk to the health and safety of others, the employer may be liable if the employee subsequently causes damage or injures another party. 

Conclusion

In today’s hiring environment, employers must adequately balance the risks of liability for discrimination in the hiring process, with the need to find the most qualified employees for the position.  In addition, employers must also take care in the hiring process to avoid potential liability for negligent hiring if they do not properly exercise due diligence in the hiring process.