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Hiring do's and don'ts.

Your hiring criteria should pass these tests.

Is it time to review your hiring practices? New legislation such as the Americans With Disabilities Act (ADA) and policies adopted by the Equal Employment Opportunity Commission (EEOC) over the past few years may require changes in how you go about hiring.

Job advertising language. EEOC regulations and policy guides on avoiding race and sex discrimination in job advertisements are 20 years old, but they bear repeating. The only time sex or race may be specified is when the job requires either a male or a female or a person of a particular race; this is referred to as the bona fide occupational qualification. With respect to sex in particular, such jobs are rare.

Age discrimination. EEOC also has a policy warning employers to avoid language that may subtly discourage people in protected age groups from seeking employment. Out-and-out age discrimination, of course, is forbidden by the Age Discrimination in Employment Act (ADEA), which protects anyone 40 or older. Associations must be sensitive to using descriptions in job ads that may signal older workers not to apply. An ad touting the association's "young, dynamic, with-it, '90s staff," for example, might discourage older applicants' interest. Similarly, ads that say a position is well-suited "for supplementing retirement income" would violate this policy.

Expanding the reach of job ads. EEOC says job ads should be calculated to reach the largest number of qualified applicants, especially when the employer has an affirmative action program. The ADA adds some impetus to this advice by making it illegal to discriminate in the application process on the basis of disability.

In practice that means associations will have to pay closer attention to placing ads where they are most likely to reach people with disabilities. This may mean using the job services of organizations for people with disabilities or advertising in special outlets, such as large-print or Braille newspapers. You aren't required to do so, of course. But these suggestions follow from the ADA's mandate not to discriminate in the application process.

Job requirements and qualifications. Writing accurate and defensible job descriptions is absolutely crucial to complying with the disabilities act. The ADA does not mandate job descriptions; but given the weight the statute accords descriptions written in advance, it is foolish for associations not to have them.

A key feature of job descriptions under the ADA is that they must distinguish essential functions of the job from nonessential functions. EEOC regulations implementing the employment part of the ADA give a number of criteria for determining when a job function is essential. Some of them are that the job exists to perform that function (e.g., the job of receptionist exists to answer the phone); there are few people who can perform the job; or the job requires special skills or specific expertise.

The regulations make it clear these criteria are not exhaustive or exclusive. EEOC might argue that the premium an employer is willing to pay for a particular skill is evidence of it being essential or nonessential to the job. For instance, offering an additional $10,000 if an applicant is a certified public accountant or can speak Spanish indicates that having a CPA designation or being able to speak Spanish is essential.

Identifying essential and nonessential functions is important because the definition of an otherwise qualified individual with a disability is that he or she be able to perform the essential functions of the job with or without reasonable accommodation. It does not violate the ADA to refuse to hire or consider a person with a disability who cannot perform the essential functions of the job, with or without accommodation.

Interviewing candidates. The ADA also makes major changes in interviewing techniques. For example, all inquiries about health, disabilities, workers' compensation claim history, medical history, and medical exams are out at the interview stage. (Drug testing is still allowed because it is not considered a medical exam.)

In the case of people with obvious disabilities, you cannot ask them how they became disabled or what the severity or prognosis of the disability is. You can ask how someone would perform essential functions of the job. Suppose you are interviewing for a mail clerk position that requires using a dolly to move heavy boxes. You may ask a person who has trouble walking how he or she would move the boxes. You may also ask the person to demonstrate that, even if you do not ask applicants without disabilities to do so.

In general, the best advice for job interviewing is this:

* Make sure all inquiries are job-related.

* Ask all applicants the same questions.

* State the job requirements and ask if the person can do them.

* Don't ask personal questions such as, "What is your religion?" Instead, say "This job requires occasional weekend work; is that a problem?"

Background and reference checking. It is perfectly legal to check references; in fact, failing to check out an applicant's background, especially when you have cause for concern, can be evidence of negligence in hiring if someone you put on the payroll later causes injury to someone else. Suppose you are hiring a meeting planner and the applicant's resume shows a three-year gap in employment history. You hire the person and he or she gets angry and assaults someone. Had you checked that gap, you would have discovered the person was in prison for attempted murder; you could find yourself defending a negligent hiring suit.

Do distinguish legitimate reference checking from impermissible, indirect inquiries. The law generally prohibits doing something indirectly that the employer may not do directly. For example, you know you can't ask about a person's political affiliation, age, or marital circumstances, so you hire a private investigator to find out for you. Obtaining information in this fashion is every bit as illegal as asking directly.

Hiring-from-within policies. Hiring-from-within policies are legal and legitimate. There are only two times they can get you in trouble: when they have a disparate impact on protected groups or when the association does not follow its own policy. Suppose an association has 15 people on staff, all white and all younger than 40. If insiders are given preference every time a promotion or new job opens up, this will have a disproportionate, adverse effect on applicants who are not white or older than 40.

On the other hand, the association's personnel manual may promise that current employees will be given equal or preferential consideration for new openings, but the person doing the hiring does not do that. Here, the association opens itself to a breach of contract suit, based on the theory that the personnel manual is a contract and the policy on hiring from within is an enforceable contractual promise.

Antinepotism rules. Likewise, it is legal to have a policy not to hire relatives of current employees. In fact, the courts have actually ordered employers to adopt antinepotism policies when hiring resulted in excluding members of certain groups (e.g., women, blacks, or people in a certain age range).

Such policies must not have a disparate impact on protected groups, however. For example, an antinepotism policy that forces an employee to quit when he or she marries a fellow employee is ripe for attack on the disparate-impact theory of discrimination.

The best hiring program will embody these elements:

* Job ads and descriptions are accurate and detailed.

* Ads are calculated to reach the broadest possible audience of qualified, interested applicants.

* Ads and other screening techniques do not discourage or filter out members of protected groups.

* Interviewing techniques are job-related and consistent.

* The organization hires the person best qualified and does not rule out an applicant on the basis of prohibited criteria such as sex, age, race, disability, and so forth.

George D. Webster is general counsel to ASAE and a partner in Webster, Chamberlain & Bean, a Washington, D.C., law firm.
COPYRIGHT 1992 American Society of Association Executives
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Copyright 1992, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Title Annotation:employee selection
Author:Webster, George D.
Publication:Association Management
Date:Nov 1, 1992
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