How To Hire: Basic Hiring Procedures

Employers must know how to hire employees – appropriately. In order to avoid discrimination claims, there are only certain types of questions you may ask the applicant, both in an employment application/job posting and during an interview. Straying from these questions can potentially open the employer up to lawsuits from the applicant.

Concrete Action Steps

Employ Inclusively

Include an “Equal Opportunity Employment” statement in your job posting. You should also provide a means by which individuals can request a disability accommodation in your posting.

Taboo Topics

Avoid asking questions about protected characteristics (race, religion, age, etc.). Be careful, this includes questions that “tend to elicit” a response regarding one of these subjects. See below for examples.

Keep Employment “At-Will”

Avoid changing employment “at-will” status. To avoid accidentally changing “at-will” to “for cause” termination, make it clear in offer letters, employment contracts, etc. that the employment is at-will, and avoid implying that the employee will be with you for a specific length of time or will only be fired for certain actions. See our At-Will Employment article for more information.

Prohibited Behaviors

Do not ask for any of the following without talking to an attorney:

  • Medical exam
  • Lie detector test
  • Physical fitness testing
  • Social media information
  • Credit information
  • Medical information
  • Proof of disability

Job Posting

Recommendations

If you have any job postings, be sure to include the following:

________ is proud to be an equal opportunity employer. We celebrate diversity and are committed to creating an inclusive environment for all employees. We do not discriminate in employment on the basis of race, color, religion, sex, national origin, political affiliation, sexual orientation, marital status, disability, genetic information, age, military service, or any other legally protected characteristics.

  • Means by which individual can request accommodations for disability, e.g.: “If you need assistance or an accommodation due to a disability, you may contact us at _________”

Note: this includes job postings on your website, physical posters, through application sites like Indeed, Glassdoor, or LinkedIn.

Taboo Topics

Protected Characteristics

This includes:

  • Asking direct questions about each subject (e.g. “What is your race/religion/national origin?”), or
  • Asking any questions that “tend to elicit” a response regarding one of these subjects. We have included samples of less obvious questions that you want to avoid.

For example, asking someone what their first or native language tends to elicit information about ancestry, and possibly country of origin. Unless necessary for the job, try to avoid questions that touch on protected characteristics like this.

If the applicant brings it up, that’s fine, but don’t make notes about the protected characteristic and keep the topic relevant to the job (e.g. if the applicant voluntarily says that they’ve worked for a church, ask what work skills they gained during that experience).

Problematic Subject Areas

Race

Sex/Gender/Orientation

  • This includes questions that would indicate sex/gender (such as asking for prefixes like Mr. v. Ms.) if you don’t know the sex/gender of the applicant
  • Questions that would likely elicit a response that indicates orientation, such as whether the applicant has been to a particular event (e.g. gay pride parade)

Religion

  • Questions about clothing that appears to have religious significance

Age

  • Questions regarding birthday
  • Questions regarding date of high school or other graduation
    • You CAN ask questions regarding extent of education, degree(s) received, names of schools attended, and so on
  • Questions that tend to identify applicants as 40 years of age or over

Family questions: Marital/Parental Status, Source of Income

  • If the applicant has a “maiden name”
    • You CAN ask “Have you ever used any other name?” if needed for background checks, previous job inquiries, etc.
  • Questions regarding family plans, the number / ages of children, daycare arrangements, or sick child arrangements
  • Questions regarding the spouse’s occupation, income, or possibility of a job transfer

Ancestry/National Origin

  • Questions regarding the derivation of an applicant’s name or surname
  • Questions regarding proficiency in speaking, reading, or writing English unless this is a specific requirement of the job
  • The nature of an accent
  • “What is your first/native language?”
    • You CAN ask if the applicant speaks other languages IF it is necessary for the job they will be performing
  • Questions about whether the applicant is a citizen of the US
    • Should instead ask if an applicant is “authorized to work in the US”
    • Keep in mind the distinction between “Citizenship” (NOT ok) versus “Authorized to Work” (ok)

Disability

  • Whether an applicant has a disability that prohibits him or her from performing the job or requires a reasonable accommodation to perform the job functions
    • This CAN be asked after the applicant has received a job offer (so that the reasonable accommodations can be provided)
    • During the interview, should instead ask “Can you perform the essential functions of the job for which you are applying, assuming you have any necessary reasonable accommodation?” or something similar
  • Questions about temporary impairments (a cough) that could relate to possible long-term conditions

Military Discharge Status

  • You CAN ask questions regarding relevant experience gained during military service

Credit History

  • Questions regarding loans, credit cards, wage garnishments, bankruptcy, ownership of home/financials

Political Affiliation

Previous Workers Comp Claims/Union Involvement

  • Questions about number of sick days at previous employers (disability, workers comp)
    • You CAN ask questions regarding ability to work the employer’s normal work hours, or ability to work overtime

Previous Arrests

Other Comments or Topics to Avoid

“For Cause” versus “At-Will” Language:

  • Never offer applicants the position for a specific time duration.
  • Never assure an applicant that he or she can be terminated only “for cause”, “for good reason”, or any other promises regarding termination.
  • Avoid language that implies long-term job guarantees, such as applicant will have “job security”, or “will be around for a while”.
  • Do not promise any benefits for a fixed period of time (e.g. a certain number of years).

Practical Testing and Other Qualification Checks

Prohibited Tests

Don’t ask for any of the following (unless necessary for the job, in which case speak with an attorney):

  • Medical exam
  • Lie detector test
  • Physical fitness testing
  • Social media information
  • Credit information
  • Medical information
  • Proof of disability

Possibly Permissible Tests

Talk with an attorney for proper procedures if:

  • You want to use any of the following during the hiring process:
    • Drug/alcohol testing
    • Background checks (note: these may be necessary if your employee will have access to people’s homes, children, the elderly, money, or other sensitive information, locations, or people)
    • Practical tests
    • Any other tests or processes
  • You want to base a no-hire decision on information received from third parties (like references or social media).

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