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Preventing Discriminatory Hiring Practices

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"Bias in employment is a crime against humanity." Discrimination in the workplace is illegal and immoral. It's also bad business. For example, suppose an employer decides that a job should be filled by a man, preferably of the same race and national origin as others in the department and between the ages of 35 and 45. Because it is illegal to advertise these requisites, the ad indicates that the job is open to all: "We are an equal opportunity employer." Most of the time that's true, but all too often it's a perfunctory phrase thrown in for legal reasons.

Don't Limit the Pool of Applicants

Companies that place these restrictions on hiring only end up severely limiting their ability to choose from the richest possible talent pool.

There are jobs that demand certain abilities that rule out selected people. A physically demanding job might necessitate hiring workers who are stronger than others. This sort of situation constitutes only a small percentage of hiring decisions, however. In most cases, a wide range of individuals is capable of filling a position--men or women, young or old, people of every race, religion, or national origin. Given that candidates from each group possess comparable education, knowledge, and skills--in other words, have the skills to get the job done--why limit the choice to only those who meet arbitrary, biased, preconceived notions?

The United States is faced with a dwindling number of qualified workers. Minorities and women will increasingly represent the available talent and will occupy a majority of jobs in the future. Does artificially limiting the scope of a hiring search make sense in that climate? Of course not. Purchasing agents routinely survey the field of suppliers in search of the best product, at the best price. They invite bids from all who can deliver what the company needs. Human resources professionals, and the management for whom they hire, should do no less.

Don't Pre-Judge Job Candidates

Aside from the obvious forms of employment prejudice--gender, age, race, and religion--there are many other subtle, albeit telling, pre-judgments that limit the field of candidates from which to choose. Here are three to watch out for:

O Don't choose a candidate on the basis of appearance or personality. "If they look like us, dress like us, speak like us, and think like us, they must be okay." Not necessarily.

O Don't rely on test scores. "Only those who score above a certain level will be considered." Remember that tests don't necessarily measure "smarts" or people skills or the ability to be a team player. Medical schools, for example, are filled with students whose grades were at the top. Whether they have the other less tangible qualities necessary to become caring, healing physicians remains conjecture. To be an effective employee in any field or profession one must be more than just qualitative knowledge.

Employment testing can play a role in the ultimate hiring decision, but it shouldn't be the only determining factor.
  • Beware of school prejudice: One of the most common hiring prejudices is to choose only from those employees who've graduated from a select list of colleges and universities. A certain amount of this might result from campus recruiting efforts, but to follow it as a hiring philosophy is to lose sight of the obvious. If you examine the educational background of some of the world's most successful business people, you will find that only a small percentage graduated from prestigious schools. Impressive sheepskins do not necessarily translate into quality employees. Educational quality is important, but even more meaningful is what a person is made of: character, drive, willingness to learn and to grow, honesty, and the commitment to a company's goals and philosophies.
How to Broaden the Pool of Interviewees

Total objectivity in hiring is impossible to achieve, especially when more than one person is involved in the selection process. Assume you will be the supervisor of a candidate who is yet to be hired. One hundred fifty resumes have been received by the human resources department, which sorts them into three piles: likely candidates; good candidates, but not as good as the first batch; and those who lack the requisite skills and experience for the job.

The sorting of candidates is done, of course, by people to whom the chosen candidate will not report. For that reasons, it would behoove you to interview not only, say, five from the first pile, but also a few from the runner-up stack, even if you pick them at random. Chances are good that at least one from the "not-as-good" pile will, in your estimation, compare favorably with the five primary candidates.

It may seem axiomatic, but one of the best ways to eliminate silent prejudices is to pay careful attention to those who do the hiring. It's akin to choosing a jury. Stock a human resources department with "jurors" who are relatively free of bias and you stand the best chance of finding, hiring, and retaining the best available candidates.

How Discrimination Laws Affect Employment Practices

Federal groundwork against workplace discrimination was established in 1964 when Title VII of the Civil Rights Act was enacted. It prohibited companies from bias in hiring, promoting, or dismissing, or in pay and The Folly of Discrimination in the Workplace benefits, on the basis of race, color, religion, gender, or national origin.

The terms of that Act have been broadened to include persons over the age of 40, disabled veterans, Vietnam-era veterans, and the handicapped. In 1978, Congress amended the law to include the Pregnancy Discrimination Act, which covered pregnancy, childbirth, and related medical problems. More recently, the Supreme Court ruled to include sexual harassment.

As the 1990s dawned, AIDS and other transmittable diseases have become the basis for discrimination lawsuits. Alcoholics and drug addicts have also sought and found protection under the statutes.

Employment law evolves from a complex, crazy-quilt mix of Federal and state legislation. No book can or should attempt to replace the advice of a company's legal counsel, but from a general hiring-and-firing perspective, there are basic legal tenets to which all employers must adhere, regardless of the jurisdiction under which they do business.


First, understand that it is legal to fire an employee, but be prepared to document the reasons for termination. For example, the following lists some acceptable reasons:
  • Substandard performance

  • Excessive absenteeism or lateness

  • Lack of ethics

  • Failure to obey laws affecting the business

  • Embezzlement

  • Disruptive behavior
It is unlawful to fire employees if their only offense was to exercise legal rights. According to Michael Lotito, a labor law specialist at the firm of Jackson, Lewis, Schnitzler & Krupman, such legal rights include
  • Asking for time to serve on a jury

  • Filing a worker's compensation claim, or a complaint with the state wage-and-hour board

  • Refusing to commit an impropriety, such as falsifying documentation that will be submitted to a court or regulatory agency.
Of course, it is also illegal to fire any individual for other than work-related reasons. Suffice it to say at this time that unless an employee's performance not only is deemed sub-par but also has been thoroughly documented as such, the legal arena is where any dispute is likely to be settled.

Sexual Discrimination and Harassment

Sexual harassment is one of the most heated areas of employment discrimination, and is among the most difficult for employees to prove. (The Clarence Thomas Supreme Court confirmation hearings, if nothing else, pointed out the many difficulties inherent in the investigation of sexual harassment charges.) An allegation of wrongdoing, whether or not ultimately proved, can severely damage a company's reputation as an employer, to say nothing of the time and money needed to defend against such charges.

An increasing number of companies have instituted educational programs through which employees learn what constitutes sexual harassment, and how to avoid behavior that might be construed as harassment. Most important, management must take a stand-be on the record as neither condoning nor allowing any form of sexual harassment, and act against those who violate that principle.

Age Discrimination

The number of legal actions brought against employers for hiring discrimination based on age has grown dramatically in recent years; damages awarded have kept pace with the increase in actions filed. A 1989 study published by the Bureau of National Affairs, a private Washington-based information service, pegs the average age discrimination award at $722,294, which doesn't take into account, of course, the money spent by a company to defend itself.

Though, age discrimination can be costly in other ways. In the days ahead, older workers will become increasingly in demand and valued. Demographic projections in the U.S. Census Bureau indicate the population will increase 7.1 percent. Unlike previous population swells, however, this will result from people living longer, rather than Workplace because of higher birth rates, and will have a serious impact on the availability of workers between the ages of 30 and 45.

Older employees can be an asset to any company. Ironically, it is often older job candidates themselves who add to their difficulty in being hired. I have found that they enter an interview assuming they will be discriminated against. Rather than demonstrate all the positive reasons why they are right for the job, they act defensively. (The same, of course, holds true for all categories of job seekers who establish a negative, defensive posture rather than putting forward their best positive foot). Once such a barrier has been erected, it often becomes self-fulfilling.

An interviewer can do a great deal, however, to overcome this in the interest of fairly evaluating an older candidate's qualifications. The first step is to be free of prejudices toward older workers in general and to recognize that older employees are often more ethical on the job and bring years of experience to a company that cannot easily be duplicated. In addition, they are less likely to move on to a competitor, provided they are treated and compensated fairly. By viewing older job candidates in this positive light, and exuding it, a more meaningful and useful interview results.

That age should be considered an asset, rather than a negative factor, when hiring is demonstrated by a study conducted by psychologists David A. Waldman and Bruce J. Avolio, of the State University of New York at Binghamton. Their conclusions, published in the February 1986 issue of Journal of Applied Psychology, evolved after having analyzed a series of surveys, conducted between 1940 and 1983, that measured objective units of productivity. They concluded that older employees were more likely to perform at higher levels than were younger employees in similar positions. I believe their opinion is just as valid today as it ever was.

What is the definition of "older worker?" It's all relative. A 40-year-old job candidate is an older worker when viewed by a 30-year-old interviewer. A 60-year-old, from the vantage point of youth, is supposed to retire, not be looking for a job.

Employees of any age want their jobs to be challenging. They want, and deserve, to function in an atmosphere that is conducive to healthy, productive work, that pays fairly, and that values their contributions. Unfortunately, there are employers who view those outside the mainstream of candidates--older, female, racial or religious minority--as deserving less. The salient fact is that no employee who can get the job done should be treated less fairly than others.

The American Association of Retired Persons (AARP) recommends that companies looking to attract older, more experienced employees consider the following:
  • Accommodate physical limitations, including minor modifications to the work site or job. (This is now a law.)

  • Examine the possibility of flexible hours, job sharing, and home-based jobs.

  • Offer desirable benefits, including medical coverage, life insurance, sick leave, and paid vacations and holidays.

  • Make it clear in help-wanted advertisements that experience is valued. This is not meant to condone reverse discrimination; a younger candidate with the requisite skills should not be overlooked in order to hire older workers. At the very least, however, do not structure ads that place a subtle, yet pointed added value on youth.
The Disabled

Discrimination against the disabled has captured national attention with the passing of the American with Disabilities Act (ADA), which took effect on July 26, 1992. Basically, the Act forbids companies with more than 25 employees to discriminate against the disabled in hiring, compensation, or advancement, and requires that these companies provide reasonable accommodations for disabled workers.

Currently, approximately 30 percent of the estimated 14 million disabled Americans of working age are in the workplace. I predict millions more becoming employed as employers begin to create a more habitable environment for them. The ADA is the voice that speaks clearly for disabled Americans, reaffirming a cause for which the disabled have fought for years-equal status in the workplace. It ensures that persons with disabilities or serious illnesses are not to be easily dismissed; employers must make provisions for them.

The implications of the ADA are numerous, although they remain ambiguous to employers because of the Act's language. For example, the ADA states that employers will need to provide disabled employees with "reasonable accommodation," although "reasonable" is not defined, leaving that clarification to the discretion of the courts when actions brought under the new Act are heard.

Many business people consider the ADA to be legislation that places a severe and undue burden on American industry. Certain forces in the business community and in Congress are attempting to, at the very least, modify its demands. The ADA is the law of the land, and it will have considerable impact on the overall workplace environment across the United States.

In her book, Disability Etiquette in the Workplace, Patricia Morrissey, vice-president of the Washington-based Employment Advisory Services Inc., offers the following advice on how companies can easily comply with the Act's provisions:
  • When interviewing a person with disabilities, it's important that interviewers know the essential functions of the job, ask questions related to those essential functions, and focus upon the disabled person's skill level as it relates to the job.

  • Treat disabled job candidates as you do all other candidates. Maintain eye contact; it establishes that you're comfortable with and interested in them as people, not in their disabilities.

  • Naturally, interviewing techniques might have to be altered depending upon the disability. If the candidate is hearing-impaired, modifications of the interview setting should be considered.

  • Once a disabled person is hired, information access might also need to be modified. For example, a hearing-impaired employee may need the use of a "buddy system," someone to explain announcements made over the company's public address system, or what's said in a meeting. Likewise, the configuration of desks, photocopy machines and mailboxes may have to be changed to better accommodate an employee in a wheelchair.
But all such considerations address the underlying issue of sensitivity. Similar to corporate programs to educate employees on the issue of sexual harassment, companies reap rewards by instituting educational projects to sensitize nondisabled employees on how to better accommodate and work with their disabled colleagues.

Some larger companies have been in the forefront of accommodating for the disabled for years. For example:
  • AT&T has been training managers and instituting programs in this area for over a quarter-century, and was one of the companies that actually helped the government formulate the bill.

  • Nike has rewritten its job descriptions, is training supervisory personnel to comply with the law, and is heralding the accomplishments of the disabled.

  • Ford has an ongoing education program for supervisors and tests them on a regular basis.

  • Pacific Telesis has restructured its employment interviewing techniques to better serve the disabled and adapts tools to their needs.

  • U.S. West actively recruits the disabled through campus and community organizations and modifies equipment for them.
Smaller companies, of course, often do not have staff necessary to create and implement broad-based programs to meet and exceed the Act's requirements, although some smaller firms have been in the vanguard of rights for the disabled for a long time. A prime example is Kreonite, Inc., a Kansas manufacturer of darkroom equipment, with $30 million in annual sales. Kreonite hired its first disabled worker more than 20 years ago and currently has a full-time employee on-staff to assist disabled employees. According to Larry Burd, senior vice-president for manufacturing, the disabled are not hired because the company is altruistic--they are hired for their abilities. By his own admission, the company lost many of its disabled workers a few years ago because "we patronized and segregated them." Today, under new and enlightened policies, Kreonite's workforce of disabled men and women is loyal and tends to stay with the firm for many years.

The time and money provided to establish a lawful and compassionate company policy for disabled workers is well spent. Enlightened educational programs, coupled with honest and ethical employment standards, certainly cost less than defending a policy that chooses to ignore both, which often results in costly litigation. Companies seeking to honor the specifics, as well as the spirit of antidiscrimination employment law, should confer with legal counsel on a regular basis to ensure that day-to-day operations are free from discriminatory behavior. In the case of the disabled, health insurance plans should be reviewed to ensure that they don't discriminate; medical histories and exams should not be undertaken prior to offering a job; and job descriptions should focus on the main requirements and omit fringe duties that would rule out the disabled.

Review all Employment Policies to Prevent Discrimination and Avoid Lawsuits

In order to avoid charges of discrimination of all kinds--the disabled, gender, race, religion, age, or ethnic background--every company should take a careful look whenever changes are made to employee handbooks, hiring criteria, promotion policies, pension plans, or any other factors that directly impact their employees. Anything written that touches upon the conduct and well-being of employees should be scrutinized by legal counsel.

Similarly, verbal promises made to an employee should be considered carefully in advance. Even a comment as seemingly innocuous as, "We expect you'll have a rewarding career with us that will last for many years," can be held against a company in the event the employee files a lawsuit after being dismissed.

An unfortunate situation? Of course. America's aggressive litigious climate has spawned the need for such caution by every employer, and that means planning ahead. How many employers have been "burned" when, deciding to fire an employee, they suddenly begin stuffing that individual's file with negative performance reviews? That's too late. Any court will look askance at such conduct.
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