Excerpted from Harassment and Discrimination (Entrepreneur Press)
Despite the best efforts of many employers, [discrimination] mistakes happen. Some of those mistakes are the product of a manager who is truly biased on one basis or another. More often, however, employers lose cases not due to a discriminatory manager but because of a poorly managed decision. Ineptness and insensitivity can come across as discrimination even if no discrimination was intended.
Set forth below are a number of mistakes as well suggestions for avoiding such errors. If you follow the advice below, you should be safe from liability (although let's face it, this is America-you can do everything right in this country and still get sued, and sometimes even lose).
Tips in the Hiring, Promotion and Pay Process
1. Create a process. Most employers have figured out that recruiting shouldn't be a haphazard process. The days are gone when all you did was ask your current workers if they had any competent friends who needed jobs (a system, by the way, that often led to inadvertent discrimination in, say, an all white workforce). Done correctly, recruiting involves a system. So does promotion and so does pay.
2. Give managers a plan. Make managers part of the system, but only if they understand the system. That means giving them a plan and ensuring that they're acting in accordance with the plan and not in reference to their own whims. Many of the problems that arise in discrimination law are the result of managerial biases or incompetencies.
By "a plan," tell managers what to look for, give them tools to enable then to make better decisions, and evaluate them on their ability to meet the requirements of the plan. Companies should know what they need in terms of skills and abilities. They should evaluate pay using a system. Based upon that data, managers should be able to make decisions that are consistent with the company's business rather than some personal preference.
3. Focus on objective criteria. Subjectivity continues to reign in regard to hiring and promotion decisions. The most common factor expressed by most employers is whether a candidate "fits" the employer's culture. Legally, this type of system creates risk, particularly for employers that are big enough to be the subject of a class action.
Some subjectivity is not only inevitable, it's legally permitted. To a meaningful degree, an employer is entitled to subjectively determine if a candidate is likely to enjoy the type of business culture presented by the employer. If "fit" is the primary factor, however, subjectivity combined with a statistical imbalance can create a disaster. To reduce the role of "fit," a company should consider stated and verifiable needs as well as criteria to assess whether a candidate can fit those needs. The more the analysis focuses on qualifications, skills, and experience, the less subjective a decision will be. That said, if two candidates both meet the employer's objective needs, an analysis of fit may be appropriate, but only if "fit" is defined in nondiscriminatory terms.
4. Focus on job-related criteria. Part of reducing the impact of subjectivity is to focus on job-relatedness. Some managers spend an entire interview discussing last week's Raiders-Eagles game. Such an interview may show how much the candidate knows about professional football, but such information isn't job-related unless the opening is for a coach or a sports announcer. Interviews should evaluate a candidate's skills relative to the job in question.
Many companies now use a set of interview questions that specifically focus on the skills needed for a job. Such questions relate to how particular job issues are handled, how work-related concerns are identified and analyzed, and how workplace decisions might be made. These "targeted selection questions" are oriented towards job skills, real life work situations, and traits needed for success in the position. "Targeted" and "job-related" questions also help eliminate discriminatory decisions.
5. Perform background checks. The law in virtually every state permits an employer to do background checks of potential candidates. Doing so correctly requires that an employer obtain candidate authorizations under a technical law called the Fair Credit Reporting Act. The same law also requires an employer to give a candidate a chance to explain a problem in the report. However, the Fair Credit Reporting Act does not mandate that an employer actually excuse or not excuse something in a candidate's background report.
Background reports can provide a significant amount of data. In general, employers should focus only on job-related information. A marijuana conviction at age 19 is not likely to make a 35-year-old candidate unfit for a bookkeeping job. However, any employer that hires a driver with a DUI on his or her record is taking a risk of a possible negligence case if the individual later gets in a wreck in a company car after drinking three beers.
6. Depending on the job, consider drug testing. For private sector employers, drug testing is legal unless a specific state law prohibits, restricts or governs such testing. In general, while you should talk to a lawyer about particular state regulations, candidate testing is permitted, especially for safety sensitive jobs. Among other things, statistics suggest that drug testing reduces workers' compensation problems.
7. Consider pre-employment and promotional testing. Pre-employment and promotion-related testing once was considered legally risky. Now, however, tests have become more sophisticated and job-related. In fact, capable testing companies now seek to increase the objectivity of an employment decision, not decrease it. Talk to some of the more credible testing companies like PreVisor and Hogan, and analyze your options. For many jobs, the use of testing will lead to better decisions, greater retention of new hires, and comparatively few legal issues.
8. Be cautious about interview notes. Interview notes tend to be written in a hurried and sloppy manner. Most interviewers are simply trying to get some tidbits of information down on paper so they'll recall some specifics about the candidate once the interview has concluded. Somewhat as a result, interview notes have created legal issues.
Sometimes the notes are nothing short of stupid-"this one's pregnant" is a notable example. Other times they tend to focus on matters that aren't job-related-"good looking guy, seems likeable." In short, poorly written and often misleading interview notes can create serious legal problems. A word to the wise: The less written, the better, unless what's written is job-related. The use of an interview form helps, as does some training given to interviewers before they undertake their tasks.
9. Push for diversity. Diversity is a means of both broadening and bettering one's workforce. Most employers now serve a diverse public of potential buyers and users. In addition, diversity tends to lead to better decision-making. Consequently, seeking diverse candidates is a positive goal.
10. Pay equity is important. A variety of laws address the issue of pay equity from the perspective of discrimination. In general, an employer should pay equal wages for equal work. Even absent the concept of nondiscrimination, however, pay equity should be your goal. Like it or not, employees discuss their pay and salaries with each other and the National Labor Relations Act generally protects such discussions. Given that perceived favoritism will create a negative workplace, pay should correspond to job-related factors, such as qualifications, performance and skills.