Small business owners must deal with many issues in addition to making financial ends meet: taxes, local and state regulations and licenses, advertising, and future growth to name just a few. That last issue—future growth–is what most small business owners work toward. If you are fortunate enough to be hiring new employees for your growing business, you’ll want to be sure you aren’t taking on a lawsuit at the same time.
One easy way to avoid most legal liability related to the hiring process is to maintain a clear focus on the position’s job skills, qualifications, and expectations. This places the emphasis where it should be—on filling the job. And to the extent that your hiring decisions are based on job-related criteria, you should avoid most legal pitfalls. Decide what qualifications are required for the job, put those qualifications in a written job description, and focus your hiring efforts on addressing these qualifications as objectively as possible.
State and federal laws prohibit certain types of discrimination in the hiring process. For example, some states have passed laws protecting applicants from discrimination because of sexual orientation, marital status, arrest or conviction records, off-duty use of tobacco products, political party affiliation, and personal appearance. You need to be aware of the employment laws of your state. Since these laws vary from state to state, you shouldn’t hesitate to talk to your attorney if you have any questions.
In order to avoid any claims of discrimination or illegal hiring practices, make the whole hiring process as objective as possible, Don’t stereotype applications in any way. Instead, focus on what the job requires and how each particular applicant matches up.
Don’t state, directly or indirectly, that the job is for one gender or the other; don’t engage in age stereotyping by saying you’re looking for a “recent college grad.” Make sure your ads will be seen by a wide segment of the population. Go into interviews with a series of questions that focus on the specific requirements of the job and try to ask all applicants the same questions.
Avoid questions that suggest stereotyping. For example, you may want some assurance that an employee will be with you for at least a few years. Don’t ask a female applicant, “Do you plan to get married?” “Do you plan to have children?” or “Is there a chance your husband will be transferred?” Instead, keep the focus on the job. Ask, “Is there any reason you might not stay with us for the next few years?” or “Where do you see yourself in five years?” If you want to know if an applicant can work late from time to time, don’t ask, “Do you have to be home to make the kids dinner?” Instead, simply ask, “Is there any reason you wouldn’t be available to work late at certain times?” And, of course, ask the same questions of all applicants.
Ask only what you need to know. If filling the job doesn’t require you to ask certain questions, then don’t ask them. Do you have to know the applicant’s marital status? Number of children? Religion? Age? Financial status? If not, then don’t ask the question.
Even after you’ve written the job posting and drafted our interview questions, you should still realize that you can’t make every demand of each applicant that you might want to make. For example, although the law does not regulate requests for employment references, if you unnecessarily pry into private personal information or use unreasonable methods to gather data, you may open yourself to tort liability for invasion of privacy. In other words, you might face a personal injury lawsuit from an applicant. You will generally be safe, however, if you limit your background or reference checks to issues relating to the performance of the job in question.
The law does limit the types of tests you can use to screen out unqualified applicants. to be on the same side, any test you administer should measure an applicant’s ability to preform the specific job. Tests that are not job-related and that screen out disproportionate numbers of minorities or women have been held to violate anti-discrimination laws.
The Americans with Disabilities Act forbids requiring medical tests of applicants unless you’ve offered to hire the person and you require all employees who hold the job in questions to take such a test. Any information obtained as a result of the test must be kept confidential, in a file separate from the applicant’s personal file, and cannot be used to discriminate against the applicant because of the result or because of any disability disclosed by the test.
- Refusing to hire an applicant because she is pregnant.
- Refusing to provide an accommodation to an applicant with a disability if that accommodation would have enabled her to perform the job. For example, a typist who is blind applies for a clerical job. She would be capable of doing the work if the computer had a braille keyboard. You refuse to hire her because you don’t want to buy such a keyboard. This refusal would be illegal unless you could prove that the cost of a braille keyboard would impose an undue hardship on our business.
- Refusing to hire a Latino worker because he speaks with an accent.
- Forcing an employee to retire when he reaches the age of sixty-five.
- Refusing to hire an applicant because she is a member of a Union.
- Refusing to hire an applicant because a genetic test reveals he has the potential to develop cancer.
Hiring employees should be an exciting and optimistic time in your business development. make sure you take the necessary precautions to protect your business. The last thing you want is an unintended (and possibly costly) lawsuit.
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