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Avoid These Hiring Mistakes That Could Lead To Litigation

On Behalf of | Nov 11, 2020 | Employment Issues For Employers |

When the time comes to hire a new worker, the last thing you want is to engender disputes. Yet there can be more to avoiding discrimination than just eschewing bias. Some actions employers take can have a disproportionately negative impact on certain groups. This is called “disparate impact discrimination.”

How do you avoid disparate impact discrimination? Here are some common issues to be aware of:

Criminal histories, background checks and credit reports: While these are all legal, your policy could be problematic. For example, categorically refusing to hire anyone with a criminal record may violate Title VII of the Civil Rights Act of 1964 because doing so has been shown to have a disparate impact on men, African Americans and Latinos.

Consider that not every criminal act is relevant to the workplace. Consider the actual needs of the position.

Also, an increasing number of cities and states are limiting background checks to people who have been conditionally offered a job. If this applies to your jurisdiction, even using language like “background check required” could run afoul of the law.

As far as credit checks go, remember that your disclosure and authorization forms must comply with the federal Fair Credit Reporting Act and parallel state laws. If they don’t, it could expose you to penalties in a class action lawsuit.

Failure to accommodate: The Americans With Disabilities Act (ADA) requires companies to be reasonable in accommodating people with disabilities, and that includes during hiring. A common problem is that your website may not be ADA compliant, causing people with disabilities to be unable to use it effectively.

Hiring managers should also be careful not to ask about a person’s disability or past injuries, or to state that the job cannot allow disability accommodations.

Age discrimination: It’s all too easy to inadvertently discriminate based on age. For example, you generally may not have an upward limit on the amount of experience allowed in an applicant. Don’t use buzzwords in your job postings that focus on youthfulness, like “high energy” or “grow with our company.” These can give the impression that older people need not apply.

Salary history inquiries: Several states have passed laws prohibiting employers from asking for salary histories, as this practice has a disparate impact on women and minorities. You may, however, ask what salary the applicant is seeking.

Cultural fit: Hiring for cultural fit could mean hiring people who are just like you. Consider whether your culture can be a diverse one and whether the markers of cultural fit, such as appearance and behavior, could be playing into stereotypes instead of being job-related.

Talk to your employment law attorney about the specific laws in your state.