3
The Law — What You Need to Know
Tami is 22 and has spent the past two months actively looking for a full-time job where she can put her recently acquired business degree to use. On two occasions, she has been involved in a one-to-one interview with a potential employer who preceded the serious questioning with a request for some background information. For example:
• “Are you married?”
• “Do you plan to marry?”
• “What about children?”
Denise works for her local municipality as a light equipment operator. Recently, a heavy equipment operator position was posted. As Denise was signing her name, a supervisor from the department with the job opening came up behind her. Chuckling, he patted her on the back. “What’s a little thing like you thinking of a position like this for, honey? We need a big, brawny man to handle this job.”
These two situations are fictitious, but this type of activity happens every day to thousands of people across the country. Aren’t these actions illegal? You bet. In your position as human resources manager or small-business owner, you had better be certain that your hiring practices don’t include this type of blatant discriminatory practice — or even less blatant, but equally illegal, discrimination.
Today it may seem that when it comes to hiring and firing, it’s the employees who have an edge. Not so. Business owners still have the right — and the responsibility — to hire the best person for the job. When someone doesn’t work out, they have the right — and the responsibility — to terminate the relationship. But along the way there are certain rules, regulations, and restrictions that every business owner needs to be aware of.
1. The Best Person for the Job
Chris wanted to hire a new sales associate to sell power tools. He ran an advertisement for a salesman in the local paper, interviewed only male applicants, and when asked why he was discriminating against women, he seemed surprised. “I’m not discriminating against women — what do they know about power tools?”
Chris is not alone in his attitudes. These kinds of misconceptions and biases are prevalent, even in today’s supposedly enlightened hiring environment. Unfortunately, some of these attitudes are so ingrained that many employers don’t even realize that they are making biased decisions.
Your goal when filling any position is to find the best person for the job. By definition, the best person is the one who most closely meets the qualifications for the position. Qualifications refer to objective characteristics of the job applicant — not personal characteristics (e.g., sex, age, and race).
To avoid falling victim to unintentional bias, you must carefully and consistently do two things:
(a) Specifically identify the knowledge, skills, and abilities needed to do the job.
(b) Measure all candidates objectively against the criteria you have established.
Keeping the goal of hiring the best person foremost in your mind as you select employees can help you avoid legal problems.
Employers tend to get into trouble when they let personal opinions and biases interfere with hiring decisions. “I don’t feel comfortable working with men.” “Older employees are stubborn and will be difficult to manage.” At best, these stereotypes can lead you to overlook a qualified candidate. At worst, they can land you in court.
To avoid trouble, be objective and realistic about the qualifications needed for the job. You should ask yourself the following questions:
• What is the primary reason for the job?
• What is difficult about the job?
• How much supervision is provided?
• What types of people must the new employee get along with?
• What technical knowledge or experience is required?
As you develop questions, or as you speak with job candidates, be careful that the questions you ask are all related directly to the qualifications required for the position. Even during small talk you should avoid any questions of a personal, non-job-related nature.
What are some examples of questions that are inappropriate (or illegal)? Any question that seeks an answer unrelated to the qualifications required to perform the job. For instance:
(a) Are you married? How does marital status affect a candidate’s ability to perform? It doesn’t. Therefore, any questioning along these lines is inappropriate — and illegal. An employer might argue that “a married employee will be more reliable.” If your concern is about whether the employee will be at work regularly, ask about past attendance history. Focus on specific issues that you can relate directly to performance and avoid relying on misconceptions or prejudice.
(b) Do you plan to have children? Again, some employers defend questions about children, or plans to have children, by saying that they are concerned the employee may miss a lot of work. A better way to address this concern is to ask, more specifically, “Are there any reasons that you would not be able to meet the work hour requirements of this position?”
(c) How old are you? Why does age matter? Your questions should focus on skills, abilities, or experience — age is irrelevant.
Before interviewing any job candidate, ask yourself: What are the requirements of the job? Keep this thought for most in your mind and you will be in a better position to avoid inappropriate lines of questioning — and potential legal problems.
2. Guidelines in the United States
It is important to remember that it is the consequence of employment practices and not the intent that determines whether discrimination exists. Any employment practice or policy, regardless of how innocuous in intent, which has a “disparate effect” on members of a “protected class” constitutes unlawful discrimination unless it can be proven that such a policy is required due to “business necessity.”
The Supreme Court has ordered the removal of “artificial, arbitrary and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” The practices and policies that create barriers may take place in the context of recruitment, selection, placement, testing, transfer, promotion, seniority, lines of progression, and many other of the basic terms and conditions of employment.
The removal of these barriers requires employers to practice affirmative action and provide new policies and practices. It also requires a firm knowledge of the rules and regulations surrounding equal employment opportunity and the affirmative action concept.
In the United States, affirmative action refers to equal opportunity in employment for all people regardless of physical handicap, race, nationality, age, sex, religion, or any other non-job-related means of determining eligibility for a position of employment. It is a term that encompasses various methods through which the concept of equal employment opportunity becomes a reality.
2.1 Legislation prohibiting discrimination in employment
The affirmative action concept became law in 1964 with the enactment of the Civil Rights Act. Title VII mandates equal employment opportunity by —
• prohibiting job discrimination on the basis of race, color, religion, sex, or national origin; and
• establishing an Equal Employment Opportunity Commission (EEOC) to administer the law.
The EEOC is a five-member