7 Tips to Avoiding Legal Pitfalls In Hiring

You’re a hiring manager or a third-party search firm and pride yourself on being ethical and certainly on following the law. But what about the more subtle ways you may be engaging in, or forced to respond to, discriminatory hiring practices? It’s more common than you imagine.

In the last year, how many times has someone handed you a directive that identifies a group of ideal candidates based in part on age, sex, race, or national origin? How many times has your client responded to a candidate’s interview with comments on these categories? Before you answer none, think about all the guises in which discrimination can appear.

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If you’re a third-party search firm, has your hiring manager ever told you that the candidate is “too set in his ways,” “too senior for the position,” or some other comment which invariably relates to age? If you are the hiring manager, how many times has someone in the company told you that her ideal candidate is male, female, young, white, or minority? Even things that might seem like positive discrimination generally are illegal. Condoning such practices means you are violating employment and civil rights laws as well as doing your client a disservice.

How to Deal With Discrimination in Hiring

Telling your client or supervisor that she is using discriminatory hiring criteria is clearly not going to improve the relationship. Or is it? That all depends on how you phrase it. Consider the following seven steps to avoid legal pitfalls:

  1. Tell your client to be as specific as possible. Finesse a response to these kinds of comments in terms your client can understand and appreciate. For example, conducting too broad a search wastes your client’s time and/or money. When you receive a comment about wanting candidates based on an innate characteristic, tell your client that, actually, screening clients based on gender or age is not an efficient way to search. What you would like to know instead are the nuances of who makes an ideal fit for an open position. You might even point out that trying to identify ideal candidates based on inherent characteristics is not a reliable indicator of performance. Remember that in order to offer something that your firm or client can’t get on its own, you must be an expert in human capital. This requires you to know the more subtle indicators of performance like background, experience, and disposition.
  2. Respond in terms of “protecting” your client. When faced with potentially discriminatory comments or critera, respond in terms of your clients’ best interest. For example, the hiring manager advises you that the supervisor for an open position has a staff of all women, works well with women, and women candidates are ideal. Phrase your response in terms of viability of the search. You might say, “Believe it or not, if you or I favor women in the job search, you’re potentially exposing the company to a lawsuit.” Again, rely on the fact that you are an expert, and that as an expert, it is your duty to conduct a search that has long-term viability. Reassure the hiring manager (or if you are a hiring manager, whoever is giving you the directive) that you are adept at producing candidates who are both an excellent fit for the job and whose selection won’t pose problems for the company. If the response is that this supervisor simply won’t be favorable to male candidates, suggest that she alter her selection criteria because what she is currently doing creates legal, and therefore financial, risk to the company.
  3. Know the law. Some criteria is acceptably discriminatory, such as education level, experience, and even physical ability in certain cases. What is illegal varies from state to state, so familiarize yourself with local employment laws. For instance, California’s Department of Fair Employment and Housing offers substantial protections to employees, more than in more conservative states. Before you play confidante to your client, make sure your facts are up to date. If you don’t know, or don’t want to deal with it, consult an employment lawyer.
  4. Make your interviews squeaky clean. If you will be advising your client about an interview, or conducting the interview yourself, know what questions you should never ask a candidate. These questions aren’t always obvious. In California, for example, it’s illegal to ask the age of a candidate. This means that asking the year of someone’s high school graduation is also illegal, as is any other question that can allow an employer to compute age.
  5. Don’t ever?If all else fails, avoid selecting candidates, or asking questions of them, with respect to race, age, sex, national origin, sexual preference, marital status, physical ability, and need for accommodation. Look on your state’s employment department website for specific things you should/should not ask.
  6. Examine your own biases. We all have biases; it’s just a question of whether we are mindful of them. A colleague in the San Francisco Bay Area recently relayed that she interviewed an Asian-American woman who had grown up in Texas. She asked the woman, “Are you originally from Texas?” This colleague had no bias against the woman, per se. She liked her and subsequently hired her. But she confided later that this remark could have really damaged her if she had not chosen the candidate for the position. Her question really stemmed from the fact that while San Francisco has a large Asian population, she had a hard time conceiving that a Vietnamese-American family would want to settle in a conservative state like Texas. However, the question could have been construed as a guise to ascertain, and thus discriminate based upon, national origin.
  7. Avoid the appearance of impropriety. While it might seem paranoid, the best approach to protect yourself and your clients is to avoid even the appearance of impropriety. That’s why a seemingly harmless question about someone’s background is a topic to avoid. When interviewing or screening a client, stay focused on questions and criteria that relate only to the position. If your client protests this approach, simply send her a copy of this article.

Diana Maier has been practicing law in California since 1998 when she graduated from Stanford Law School. She is a partner at Bushnell, Caplan, Fielding & Maier. Her specialty is employment law, and she both prosecutes and defends employment cases. Diana also provides a range of legal services (such as employment consulting and contingency fee collecting) for hiring managers and executive search firms. She can be reached at: diana@bcfmlaw.com or by phone at 415-217-3814. Her firm's website is www.bcfmlaw.com