As an employer, you need to be mindful of the myriad of complex laws that protect job applicants from unlawful discrimination. In addition, as you know, many of your clients, vendors, customers and businesses partners insist on diversity, equity and inclusion (DEI) best practices in your hiring protocols that go beyond what the law requires in order to qualify to do business with them. That is why many businesses have an employment attorney advise them on how to navigate this maze of obligations while still allowing them to recruit the best candidates. Below our friends at the Law Offices of James J. Cutro, PC discuss some helpful best DEI and legal compliance practices we advise our clients to follow that can form the building blocks of a safe and unbiased work environment prior to hiring a prospective member of your team.
What Is Bias?
In short, bias is when a person uses their own subjective judgment of another person that is not actually reflective of the actual persons performance. Bias can be conscious or subconscious. For example, bias can occur in the interview process if an employer decides not to hire an applicant who is a single mom because of the interviewer’s perception she will not be able to juggle her responsibilities as a single mother and reliably report to work and/or be focused on her job.
The Interview Process
The first step in avoiding bias in the interview process, and minimizing legal exposure, is to not ask questions that directly, or indirectly, inquire into matters that are not legally permissible to be considered, like age, marriage status, etc. In addition, as an added legal benefit, it is a defense to a bias claim if you did not learn in the interview process the claimed applicant’s characteristic you are later accused of discriminating against. Below are some examples of forbidden interview inquiries.
What An Employer Can’t Ask A Job Applicant
Age
- Can’t ask – How old are you?
- Can’t ask – What is your date of birth?
- Can’t ask – What year did you graduate high school?
Race/Color
- Can’t ask if they’re Caucasian, Black, Asian, etc.
- Can’t require a photo on employment application
Religion
- Can’t ask – Do you require any days off for religious observance?
- Can’t ask – Are you a member of any clubs, societies, lodges, etc.?
National Origin
- Can’t ask origin of name or where parents born
Sex
- Can’t ask if male or female on employment application
Disability
- Can’t ask applicant if disabled
Marital Status
- Can’t ask for name of a person to contact in an emergency
- Can’t ask for the names, ages of applicants spouse, children etc.
Alcohol/Drugs
- Can’t ask if they’ve ever been treated for alcoholism
Worker’s Comp
- Can’t ask if filed for or received worker’s comp. benefits
What Can An Employer Ask When Interviewing A Job Applicant
An employer can ask questions directly related to the job and the applicant’s qualifications, skills and abilities to perform the job. This includes questions about the applicant’s education, training, years of experience, salary expectations, scheduling availability, and willingness to travel if required.
Overall, an employer should ensure that job applications and interview inquiries are structured to elicit information relevant to the applicant’s qualifications for the specific job. All inquiries should be job-related and not touch on non-job related personal matters, protected characteristics, or private information.
An experienced employment law attorney can help you understand your obligations as an employer, as well as provide workplace management and employee training.