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Recruit and hire without getting sued: be careful what you ask when interviewing job applicants.

It's no fun replacing an employee. The downtime, negative impact on company spirit, and the expense of recruiting and hiring can make the experience unpleasant.

Employers need to add to that list the possible liability incurred by the hiring process and the difficulty in effectively recruiting and screening. Disgruntled applicants can sue for discrimination if the hiring process is handled poorly. Or if the hired applicant turns out to be a bad apple, the process must be started all over again.

It's easier to blunder into a discrimination suit than you'd think. The wrong phrase used in the help-wanted ad, a misguided comment in the interview or an improper question on the application can leave your company open to lawsuit.

The most recent Bureau of Justice statistics state that the annual median awards in employment civil rights cases were $137,000.

Think your company is immune? The same study found that annual "employment discrimination cases nearly tripled between 1990 and 1998, increasing from 8,413 filings to 23,735."

Awareness was a large contributor to the spike in discrimination cases, and also more legal protection, thanks to the addition of the Americans with Disability Act in 1990.

As an employer, you also must remember that at no other time than during the recruiting stage does an applicant have more to gain and less to lose by filing a suit. You can protect against liability and hiring mistakes by careful applicant solicitation, planned interviews, and proper documentation and follow-up.


It pays to be careful even while advertising an opening. Any recruitment ad you place represents your company and its written and unwritten policies. Advertisements' location can be an issue. Displaying help-wanted posters only on a certain church's bulletin board may make it appear that you seek to hire only people of that religious persuasion. Another example could be advertising exclusively in a racially slanted publication, which may show preference to hiring that race.

"There's a general rule that your hiring practice can't have a disparate impact on a specific minority or group," said Helena Hall, an attorney specializing in employment law for Perkins Coie Attorneys in Anchorage. "That could be problematic."

Instead, advertise in venues accessible to the general population.

Although Hall doesn't see this issue much, the wording, rather than the placement of advertisements, causes problems. For example, advertising for a waitress (instead of a "server") indicates gender preference or requiring applicants be able-bodied (instead of "able to lift 50 pounds repeatedly") discriminates against people with disabilities.

"I've seen ads for bars and resorts that are catering to single people," Hall said, "where the ad says 'single people encouraged to apply.'"

That, of course, is a no-no, along with any language that shows a preference to or a prejudice against a gender, race, ethnicity, religion, age, or marital or family status, the "protected statuses."

Employers of 15 or more are required by law to consider applicants able to perform the essential job duties with or without reasonable accommodation. Employment ads and applications need to stick with the essential information about the job opening, emphasizing the skills needed and the benefits your company offers. Carefully read ads as if you were part of a protected status group. Would you feel comfortable applying?

Effective recruiting reaches the target population of qualified applicants. If you're hiring for an IT position, you'll receive numerous replies by advertising the opening on your Web site, general sites such as or, and trade Web sites geared toward your industry.

Using a recruiting firm can also garner stellar high-level employees. These companies can be the middleman to find applicants who haven't been looking for a different job because they are unaware of what is available or that they could do much better than their current job. Some are just plain too busy to look around.

Advertising in newspapers and with posters may be more effective than the Internet for filling lower-skilled positions. Some newspapers will even screen applicants to blind ads so that they do not inadvertently apply to their own companies and reveal their job search to their own bosses.

Of course, with any hiring situation, keep applicants confidential. Resumes and applications should be seen on a need-to-know basis. Applicants should be scheduled for interviews so that none of them will meet up in the lobby. Not only does this avoid the awkward appraisals of who else is in the running for the vacancy, but timely scheduling also prevents applicants from knowing the protected status of any of the other applicants, which is important should they not be hired and become disgruntled.


After you begin the interview process, you still need to guard against discrimination. Questions such as "do you have kids?" or "how often were you sick last year?" wander too far into applicants' personal lives, making it appear that you favor childless or healthy applicants.

You may want to hire someone well-versed in your industry, but do not state that you are looking for someone age 30 and older. To avoid trouble, specify instead how many years of experience applicants must have.

"List technically what the employee should do," said Anne Bulmer, administrative manager at Alaska Executive Search. "Hiring agents should have an understanding of what they need."

Read over the position's job description and talk with other people associated with that position to get a feel for the skills the job requires.

"Be prepared to have a business reason for asking a question," said Bill Mede of the law firm of Turner & Mede PC in Anchorage. "Don't make any statement or ask any question you wouldn't want to have repeated back to you in a court hearing."

Mede also recommends interviewers to have another management employee present as a witness in case the interview comes under fire later.

While interviewing, avoid idle chatter about your personal lives. You may feel that small talk makes the applicant more comfortable, but it's far better to keep the interview on target: finding out if the job requirements match up with the applicant's skills and experience. However, for more highly skilled positions, the scarcity of qualified help puts the employer more in the hot seat when it comes to effective recruiting.

"Say (to applicants) 'what we can offer you' not 'what can you bring to us,'" said Sandy Allen, senior executive search consultant with Alaska Executive Search.

Especially for highly skilled positions, emphasize what the applicant should expect in benefits, salary, working conditions, chain of command, stress level and potential for advancement. Offer the applicant a job description. By being open, you place your company in a better position to snap up well-qualified staff.

Of course, there are exceptions to the rules. Minimum age requirements to serve alcohol necessitate that applicants reveal their age. For positions demanding driving on company time, tight security or high levels of trust, driving or criminal record inquires are fine; just make sure that you ask about convictions, not arrests, warns Hall. Do not disqualify a person if their shady past has little chance of impacting their current employability.

"If they were convicted once of stealing $25 and they won't be in a situation of high trust, disqualifying them could be problematic," Hall said.

On the other hand, a person who was convicted of a violent crime should not be placed in a remote work location or in a position to provide care for vulnerable adults or children, for example. Doing so could place the company in a liable position if the new employee were to attack a client or another employee.

The safest way to protect the company is to require criminal record checks and/or driving record checks for all applicants to certain positions after the initial offer of employment (pending an acceptable record). Don't single out individual applicants who look suspicious.


Another means of ensuring effective recruiting is to check up on any other qualifiers: previous employment, education or any required certification. Call every reference to verify the length of employment, why the person left and the previous employer's satisfaction.

Check the legitimacy and accreditation of the schools and agencies certifying the applicant. With the plethora of online colleges, ranging from diploma mills to accredited, cyberspace versions of brick-and-mortar colleges, employers need to be careful. Do your homework and follow up in these areas consistently with every applicant you plan to have return for a second interview.

Lee Pulliam, an IT recruiter with Alaska Executive Search, once attempted recruiting the head of a firm in Denver who claimed he earned a Ph.D. from Stanford University in California.

"We did a degree check and he had never attended Stanford," Pulliam said. "He disappeared ... and he was a $150,000 (salaried) managing director."

After you've settled on the right person for the position and you're ready to make an offer of employment, this is the time to allow the applicant to lay all the cards on the table. At this point, ask, "We would like to offer you conditional employment based on your ability to perform the essential functions of this job as stated in the job description. Are you able to do this work with or without reasonable accommodation?"

Most applicants won't want to discuss their potential shortcomings during the first interview and asking too early can be tricky. Instead, ask the vital question while offering the candidate conditional employment to avoid having to terminate an ill-suited employee or being in trouble with any subsequent workers' compensation issues.


It's a good idea to send out pre-printed postcards to show applicants that you have received their resumes. Document that the postcard was sent and save the resume, even if you do not hire the person. You never know if they could fit better into a future opening or if they file a suit, you can prove that you did carefully review the application. Do not deface a resume or application by directly writing on them; use sticky notes or a separate sheet instead.

While interviewing, take notes as to the applicants' responses, but be careful about personal notes relating to protected statuses. Although it's fine to say "neat clothing" or "sloppy attire," remarks such as "looks sexy" are not appropriate because they give the appearance of gender discrimination.

"Be aware that any notes you take during interviews could be subject to being disclosed in the event there is a claim made or employment was denied because of a statutorily protected status, EEOC (Equal Employment Opportunity Commission) investigation or state's Human Rights Commission investigation," Mede said.

Once the position is filled, send postcards to applicants you never interviewed and a short letter to the ones you did. It can help foster goodwill and document that you considered each applicant.

The hiring process can be difficult, but it need not be downright painful. By taking the time to truly consider each applicant for his or her skills and experience, you can not only avoid costly lawsuits but also find the best person to staff your company's vacancy.
COPYRIGHT 2005 Alaska Business Publishing Company, Inc.
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Copyright 2005 Gale, Cengage Learning. All rights reserved.

Article Details
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Author:Myers, Deborah J.
Publication:Alaska Business Monthly
Geographic Code:1USA
Date:Sep 1, 2005
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