Stay up-to-date on hiring protocol to avoid legal woes
By John F. MacLennan
As a small business leader, you wear numerous hats—you serve as president, HR director
and marketing manager, and also take on a myriad of other day-to-day tasks. While you may be confident in your leadership and management roles, the recruitment process often can be confusing.
Without a dedicated recruiting staff, small businesses can unwittingly enter into legal liability because of unsound recruitment practices. Business leaders preparing to hire new staff members should follow these rules throughout all phases of recruitment.
Understand the basics
Company leaders managing the hiring process should become familiar with current employment laws and regulations, which are enforced by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC’s website (www.eeoc.gov) outlines the federal laws prohibiting employment discrimination and provides regulatory updates. Prohibited questions should be frequently communicated to all individuals involved in the interview process, especially prior to initiating a new recruitment effort.
Under federal laws, it is illegal for an employer to discriminate against a job applicant because of race, color, religion, gender, national origin, age or genetic information. Florida law further extends discrimination to include marital status, meaning all questions regarding current or prior marriages, divorces or engagements are not allowed during the recruitment process.
Ask only what is needed to select the best candidate
To protect an organization from potential liability, questions on an application form or asked during an interview should be limited to those needed to determine if an applicant is qualified for a position.
While most employers know not to ask personal questions during an interview, these types of questions often appear on job applications. Companies should use the simple rule of “need to know”— if an employer doesn’t need to know a response in order to make a hiring decision, then the question shouldn’t be asked. Otherwise, applicants denied employment may later argue that irrelevant questions played a role in the company’s decision.
Look beyond the obvious
•Age. Discrimination based on age, or ageism, does not only include recruitment materials overtly asking an applicant’s age or date of birth. Employers also should not request information regarding an applicant’s year of graduation from high school or secondary education institutions. Graduation dates may allow interviewers to infer an applicant’s age.
•Pregnancy. Some employers may mistakenly believe pregnancy discrimination violations are limited to asking female applicants about their current pregnancy status. In fact, the Pregnancy Discrimination Act of 1978 also prohibits questions regarding an applicant’s medical history of pregnancy, future childbearing plans, children, provisions for child care, abortions, birth control and ability to reproduce.
•National origin and citizenship. A casually posed, “Where are you from?” may seem like a natural conversation starter, but during an interview it can have legal ramifications. Recruiters should never ask about where an applicant was born—prior to extending a formal job offer—as this can discriminate against legal immigrants and individuals with work visas.
Employers can and should ask applicants about their ability to work in the United States; after offering the person the job, employers must obtain proper documentation to work in U.S. (including a social security card or work visa).
Concentrate on abilities vs. disabilities
The Americans with Disabilities Act (ADA) prohibits employment questions regarding physical disabilities. If there are challenging physical tasks associated with a position, it is appropriate to ask applicants how they would accomplish specific responsibilities. In addition, prior to a job offer, all questions regarding medical conditions are strictly prohibited under ADA regulations.
Examples of prohibited questions include: Have you been injured on the job? Have you ever filed a workers’ compensation complaint? What medical treatments or prescription drugs are you receiving or have you received in the past? How many sick leave days did you take at your last place of employment?
Watch out for disparate impact
Most employers understand factors affecting disparate treatment claims, which refer to violations in which the EEOC’s protected categories directly influence how an applicant or employee is treated.
Many are less familiar, however, with issues surrounding disparate impact violations, which occur when seemingly neutral hiring policies or practices have a disproportionate, adverse impact on a particular group. These types of hiring requirements become illegal if an organization cannot justify the need.
•Height and weight. Organizations should not ask applicants to list their height and weight. Such questions pose a risk for disparate impact on women, particularly those of Asian descent, and do not accurately reflect a person’s capacity for a particular position.
In addition, organizations that require applicants to note whether they are able to lift a significant amount of weight may open themselves to gender discrimination claims if that task is not necessary for the job.
•Financial status. Questions regarding an applicant’s financial status—including bankruptcies, debt or poor credit—should be avoided unless there is a clear connection to the position.
These are justifiable questions for hiring personnel who would be directly handling company funds, such as accounts payable staff or a bank teller. Otherwise, they can have a disparate impact on low-income applicants or those who have been laid off (whose credit scores often suffer as a result).
•Criminal record. Questions regarding arrest records also are an example of a potential disparate impact violation against low-income applicants. Limit questions regarding criminal records to felony or violent crime convictions.
Recruitment materials should note that a person’s criminal record would not make them ineligible for a position. As well, an application should allow space for explanation of criminal records.
•Military service. An applicant’s military service often is a source of pride, and it is appropriate to inquire about current or prior positions within the military. It is not appropriate, however, to ask about the type of discharge received.
Military records were made private in 2004, and this information is available only by written request. Questions regarding discharge make employers vulnerable to disparate impact claims. The EEOC has deemed such questions impermissible, as minority members of the military historically receive less desirable discharges and there is no clear connection between type of discharge and an applicant’s capabilities.
Cautiously use social media as a recruitment tool
Social media outlets offer a bevy of information about users—often much more than a candidate would (or should) share with interviewers. Tempting though it may be to review social platforms, such as Facebook, for additional information about candidates, employers should be cautious in their use of social media to make hiring decisions.
Facebook profiles often reveal personal details (such as age, religious views and even photographs), and referencing them can expose employers to information that is protected by the EEOC.
Limiting social media use for recruitment to professional networks, such as LinkedIn, is one way to avoid protected information. Some employers have begun accepting applicants’ LinkedIn profiles as a supplement to the standard résumé. The important factor is making the application process universal, and only reviewing social media profiles that applicants voluntarily share on application materials.
For your protection
Like any business endeavor, recruitment protocol should be reviewed and revamped as needed. By staying up-to-date on hiring protocol, a small business leader can protect his or her organization from legal woes.
For more information on best practices or to address specific concerns regarding the legality of interview or application questions, employers should consult an attorney specializing in employment law.
John F. MacLennan is a shareholder with Jacksonville business law firm Smith Hulsey & Busey, where he specializes in employment law. He can be reached at 904-359-7812, jmaclennan@smithhulsey.com or through www.smithhulsey.com.




































