How to Avoid Hiring Lawsuits

by on October 11, 2011 · 1 Comment POSTED IN: Sample Management Training Videos

Video Transcript

Welcome to this Quick Take rapid learning module. Our topic today: How to avoid hiring lawsuits: The Bias-Free Questioning Model.

Here’s the dilemma you face as a hiring manager: You want to dig, dig and dig some more to learn all you can about a candidate. Unfortunately, the more you learn about a person, the higher your risk of provoking a discrimination lawsuit. If you don’t know that a candidate is a Muslim, is pregnant or is a recovering alcoholic, it would be hard for the person to make a case that you discriminated. But if you do know … well, you’re more likely to ask an inappropriate question. And if you don’t hire the person, you’re more likely to get sued for discrimination.

In this Quick Take you will learn:
The “Bias-Free Questioning Model” – a strategy for asking sensitive questions without triggering lawsuits,
What questions in job interviews could cause a lawsuit in The Big Six areas of discrimination (Disability, Age, Gender, National Origin, Race and Religion), and
Why job descriptions are key to reducing your legal exposure in the hiring process.

Let’s start with how to phrase questions using the Bias-Free Questioning Model. The key is to avoid any reference to a job candidate’s disability, age, gender, national origin, race or religion and focus exclusively on the applicant’s behavior, knowledge and ability to perform the job.

Here’s a disability example. Janice is interviewing a blind applicant who’s applying for a technical support job. Janice needs to ask a question to be sure the man will be able to read his computer screen and interact efficiently with a customer over the phone.

But how do you ask that question? Should you say, “Help me understand how a blind person can do this job?” No! That makes a specific reference to the candidate’s disability and could suggest bias. Using the Bias-Free Questioning Model, the appropriate question would be: “Can you perform the essential functions required of this position, with or without reasonable accommodation?”

The man says he uses a software tool that translates text into speech and that he can “read” with no problem. So Janice says, “I ask all my applicants to role-play calls with me. I’d like you to show me how you can handle a customer call using the software.” They arrange a demonstration the next day and, sure enough, Janice finds that the man can handle calls competently.

What did Janice do right? First, she never used the words “disabled” or “handicapped.” Instead, she framed her question in terms of an applicant’s behavior, knowledge and ability to perform. From the applicant’s perspective, the interviewer’s question wasn’t focused on what he COULDN’T do (because of his disability), but rather what he COULD do (in spite of his disability). Second, when he said he could do the job, she emphasized that she asks all candidates to demonstrate their proficiency at handling calls, and would like him to do so. She may or may not choose to hire this candidate. But if she doesn’t, it will be based on his skills relative to other candidates, not his disability.

Now let’s discuss age questions. Though some state laws differ, federal laws says people over 40 can sue you if age played a role in your hiring decision. Of course you can’t ask job candidates directly, “How old are you?” But how about this? “Hey, my wife went to the University of North Carolina, too. Were you a student when Michael Jordan played there?” Sounds innocent enough, but a plaintiff’s lawyer could easily make it look like you were trying to figure out if someone attended college during the early 1980s and use their age against them.

Let’s look at how a hiring manager named Mary handled a tricky hire: Mary’s got two finalists for an interactive marketing position that involves generating leads using social media. One candidate is 25, the other 45. Most people would agree that the 25-year-old is more likely to “get” social media than the 45-year-old. But if Mary makes her hiring decision based on that assumption, she could be teeing up an age discrimination lawsuit.

She didn’t. She crafted a job description to read: “Need person who spends three to four hours a day on Facebook, My Space, You Tube, Twitter, etc.” The 45-year-old claimed to be a “social media junkie,” but Mary, being a smart recruiter, wanted proof. Now, she could have said, “You know it’s hard for me to believe that a guy like you with a wife and kids would find time to surf social media sites all day long.” But the “guy like you” comment and the reference to kids suggest age bias and could get Mary sued.

Instead, using the Bias-Free Questioning Model, she asked questions about behavior, knowledge and ability to perform the job, such as, “How many people have you friended on your Facebook site?” and “How would you get around the fact that YouTube gets blocked by corporate servers?” The candidate’s answers suggested that he did not live and breathe social media. Mary went with the younger candidate, but since her questions to the rejected candidate never referred to age, she didn’t give him any traction for a lawsuit.

Next, gender. In rare instances, when gender is a bona fide occupational qualification, you can exclude candidates based on their gender. A modeling agency, for example, can advertise for male or female models. But in most situations you risk getting sued if gender plays any role in a hiring decision.

Obviously you can’t ask “Are you married?” or “Do you have children?” Yes, it’s true that men marry and have children, but the courts recognize that women, not men, tend to suffer discrimination over family issues. But what if a woman volunteers that she has small children? Could you ask, “What provisions have you made for child care?”

Sorry, but you can’t. What COULD you ask the woman? Using the Bias-Free Questioning Model, you might say, “As stated in the job description, you’ll need to be here from 9 to 5 every day with an hour lunch. Is there any reason you might not be able to meet that job requirement?” That’s a fair, unbiased question that’s narrowly focused on job requirements.

Now let’s look at national origin, citizenship and intended citizenship. Often, discriminatory questions arise when you’re trying to find out whether a person has the right to work in the U.S. The wrong way to find that out would be to ask “What is your national origin?” or “Where were you born?” You can’t even ask, “Are you a citizen of the United States or do you intend to become one?”

A good rule of thumb is this: Prior to hiring a person, ask no questions about national origin, and do not ask for proof of work authorization. You can only require such proof AFTER you have made an offer of employment.

Here’s the bias-free way to determine whether a person has authorization to work in the U.S: “AFTER WE’VE HIRED YOU, will you be able to submit proof that you have the legal right to work in the United States?”

Next, let’s talk about race or color questions. Sometimes when you’re interviewing a member of minority group, you have the same concern as with national origin: Can this person work in the U.S.? If that’s the issue, follow the same guidelines we just laid out.

But many race lawsuits are caused by idle comments that could suggest that race was a factor in a hiring decision. For example, an interviewer examining a resume looks up at a candidate and says, “La-Neishah. Hmmm, is that a family name?” That sounds innocent, but a job candidate could easily feel that the interviewer was unduly focused on her African-American heritage. Lawsuits have been filed because interviewers made comments about a person’s skin, eye color, hair color, dress and jewelry. Don’t do it.

Finally, religion questions. You can’t inquire into an applicant’s religious faith, denomination, or affiliation, except in those rare instances where religion is a bona fide occupational qualification. A mosque, for example, could show a preference for Muslim job candidates.

Here’s a scenario that demonstrates the right way to handle candidates whose religious restrictions make them a poor fit for a job:

Megan was recruiting an assembly-line worker. The job description read: “For safety reasons, no headgear or hanging jewelry can be worn during work hours.” Nour, a Muslim, was qualified for the job but came to her interview wearing a veil on her head. Megan wasted no time asking this bias-free question: “Nour, the job description I gave you stated that no head gear or hanging jewelry may be worn due to safety concerns. Can you meet that job requirement?” Nour said that her religion required that she wear the veil in public at all times. At which point Megan ended the interview, suggesting that if a job came up that didn’t involve working with dangerous machinery, Nour should apply for it.

Does Nour have a case for religious discrimination? No. Megan did two things right. First, she clearly specified in the job description that the job forbade head gear, and explained why. Second, she asked a bias-free question about head gear that made no reference to religion. Nour had no evidence that Jill’s decision was influenced by anything other than her inability to meet the no-head-gear safety requirement.

Let’s sum up:
You need to dig in a job interview, but the deeper you dig the higher your legal exposure

This doesn’t mean you shouldn’t ask about sensitive issues that could impact job performance

But when you phrase these questions, use the Bias-Free Questioning Model, which focuses exclusively on non-discriminatory issues such as behavior, knowledge and ability to perform the job

Job descriptions are key – think out the job qualifications carefully in advance, then focus your questions on determining whether the person can perform the job effectively.

Thanks for listening.

1 Comment on This Post

  1. January 18, 2012 - 10:15 am

    How to ask questions in a job interview that won’t lead to lawsuits

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