Legal Column: How Not to Hire a Harasser

Editor’s note: You are reading the first article by ERE’s new legal columnist, Kate Bischoff. In case you missed the post and video introducing Kate, you may view it here


Over the past three years, we’ve been particularly careful about harassment.

We’ve instituted new training sessions to align with new laws at the state and local levels.

We’ve revamped policies.

We’ve even changed employment agreements to eliminate mandatory arbitration for discrimination and harassment claims.

But have we changed how we hire?

Ensuring employees work in a harassment-free work environment isn’t just an HR function — it is part of a recruiter’s job, too.

Consider this: You’ve worked really hard to find the perfect CFO candidate. The guy you identify has industry experience, can speak intelligently about growth and proper financial structures, and is well-liked by the CEO and several board members. He gets hired.

Within the first three months, rumors start circling that he likes to talk about his sex life with the accounts receivable staff, so the CEO comes to you and asks, “Did you find anything in his work history about harassment issues?” How are you going to respond?

The point here is that while it’s not your fault if an employee harasses someone, there are nonetheless steps you can take to reduce the chances of hiring a harasser. Here are just a few:

1. Ask about experience with harassment policies and training.

I know, I know. You have a ton of job-specific questions you want to get to, but why ask about a candidate’s experience with harassment policies or training? If you’re really committed to fostering a safe environment for your people, then there’s no harm in asking. Your culture will thank you. Here’s what you could ask:

  • How have you ever taken harassment training? 
  • What were the takeaways from the training?
  • If someone told you that the CFO uttered a racial slur, what would you do?
  • If you saw a manager touch the butt of one of her staff, what would you do?

Candidates who haven’t paid attention to any of the above will view such questioning as an excruciating experience. Expect hemming and hawing.

Candidates who have been through training (and paid attention), have been through a harassment investigation, or have been targets of harassment will have nuanced responses, complete with their own philosophies. 

Candidates who have been subjects of harassment investigations will likely be dismissive. 

It’s the middle group that you should consider hiring. They can articulate how they treat people, why such treatment is important, and what they would do if someone told them about harassment. 

2. Do the reference check.

Now, reference checks have limited utility generally. But in asking a former employer if the candidate is eligible for rehire, you can learn a lot even if the separation was a resignation.

If the former employer isn’t willing to rehire the candidate, go back to the candidate and ask why they would respond with a no. It’s possible that the candidate was given the “opportunity to resign” instead of being fired for engaging in harassment or other malfeasance. How someone responds will give you helpful information you can take to the hiring manager.

For example, if a candidate says that they wouldn’t be rehired because of a dispute, an investigation, or “it was a mutual decision,” then you should press for further information and clarification.

3. Look at their social media.

There is little harm in you (recruiter/HR/non-decision-maker) looking at a candidate’s public social media. Do it. But do not ask for the candidate’s passwords or try to sneak views into accounts that are private. That’s just asking for trouble.

Is there a bunch of misogyny or offensive comments or images? Are there negative comments related to #metoo or disrespectful rhetoric in general? These should be red flags. Always ask the candidate to explain what you find.

4. Consider how the person treats people not associated with the interview.

How does a candidate treat people at your company who are not directly involved in the hiring process? Not only is this an indicator of how they’ll treat colleagues, it is also a good indicator of harassing behavior. We know that harassment has a lot to do with power dynamics, so the way that a candidate treats the receptionist, the recruiting coordinator, the maintenance team, or anyone else they run into during the interview process can provide some really valuable information.

You don’t want to be the recruiter who helped hire the harasser. Luckily, there are relatively low-effort steps you can take to figure out if your candidate could harass. Take the extra time. I know you don’t have much, but it will pay off in the end. 

Kate Bischoff, ERE's legal columnist, is an overly enthusiastic, sarcastic, and opinionated management-side employment attorney and human resources professional. She works closely with management, HR, and technology companies to improve organizations and make it easier to recruit and retain talent through easy-to-understand policies, easy-to-use technology, and easy-to-explain compliance initiatives.

Prior to starting her own business, Kate served as the HR officer for the Consulate General Jerusalem and U.S. Embassy in Lusaka, Zambia. Kate has also been recognized by The New York Times, CNN.com, Wall Street Journal, USA Today, National Public Radio, and other journalistic sources as a leading authority on harassment, technology in the workplace, and employment law.

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