Hiring is a Delicate
By Jim Leverette
An inappropriate or poorly worded question
when interviewing a candidate can cause
you to run afoul of federal and state
anti-discrimination laws that stipulate
stiff fines and other penalties. The principles
that will help you stay on the right side
of the law include:
Stick to the fundamental responsibilities
of the job and the skill requirements
of the role.
Be disciplined when describing the personality
of the person you are looking for. Don't
say "young," when you mean "energetic"
or "someone open to learning."
Favor behavior-descriptive terms like
"flexible," "good sense
of humor," or "focused,"
when describing personality.
Our clients want the top echelons of
their corporations to reflect America
today and actively seek diversity in their
boardrooms and C-level suites. They associate
diversity with strength; so do we. However,
given how easy it is to inadvertently
open yourself to tough penalties and lawsuits
when interviewing, here are some practical
applications to bear in mind:
Implementing an affirmative action program
is laudable; but, make certain you give
due consideration to all candidates whether
they fall inside your program or not.
Title VII of the Civil Rights Act of
1964 forbids any search consultant to
refer candidates strictly based on race,
color, national origin, sex, age, marital
status or handicap. Other important laws
focus on specific areas: The Age Discrimination
in Employment Act of 1967 covers age discrimination-which,
by the way, only applies to people between
the ages of 40 and 70. The Pregnancy Discrimination
Act of 1978 says an employer may not discriminate
based on pregnancy. And The Americans
with Disabilities Act of 1992 protects
When our firm is engaged to recruit minorities
or women, we are legally bound to tell
the client "we can only refer candidates
on a non-discriminatory basis" and
will submit all qualified candidates.
However, we can and will expand our search
efforts to increase the likelihood of
identifying minority or female candidates
so we will have more women and minorities
to refer. This is perfectly legal and
all to the good. All qualified candidates
should be interviewed regardless of whatever
affirmative action parameters you may
wish to emphasize.
When damage results from interviewing
and hiring practices that do not follow
the law, that person is entitled to reimbursement.
For example, when an individual is not
referred by a search firm because of that
person's race, both the firm and the consultant
could be liable to that person for the
value of the lost opportunity and the
difference between what he or she would
have earned, as well as what they actually
earned during the same period of time
had they not been discriminated against.
If you want to find out how dedicated
an individual might be if hired for a
position, proceed with care.
It is understandable that you will want
to learn if candidates emphasize home
life and charitable activities over their
employment position or the opposite in
order to understand what role their work
plays in their lives. However, don't ask
questions about these topics unless the
candidate volunteers this information.
Typically, family, job or balance-orientation
will come out over the course of several
interviews. If you talk about your weekend
activities, they will talk about theirs.
The same goes for hobbies, organizations
Does the position you are interviewing
for have a Bona Fide Occupational Qualification
This is the only exception to Title VII
that actually allows you to discriminate
based on religion, sex or national origin
in cases where the role you're filling
has a BFOQ reasonable to accomplishing
the objectives of the role.
The BFOQ cannot be based upon customer
or employee preferences. For example,
you cannot invoke it by saying, "Our
customers want to place their orders with
a man," or, "This group won't
work for a woman," even if women
or men traditionally hold certain positions
in your industry.
It applies only where community standards
of morality or procedure would be violated
if a member of one religion, sex or national
origin held a job traditionally held by
a member of another. Remember-"the
BFOQ applies to religion, sex or national
origin only. It does not apply to race
The Americans with Disabilities Act (ADA)
of 1992 goes into great detail defining
who the Act covers, what the word "disability"
means and what job accommodations should
or should not be made. Suffice it to say,
when hiring people with disabilities,
pay special attention to what, by law,
is appropriate to ask when interviewing.
For example, it is appropriate to ask,
"Can you perform any or all functions
of the role?"
However, you should not ask the question
in such a way that requires the individual
to mention whether a reasonable accommodation
is needed. Although it is appropriate
to ask, "Please describe or demonstrate
how you would do the job."
Remember, you may only do so as long
as all candidates for the position are
asked to give this description or demonstration.
Should an individual need a reasonable
accommodation in order to perform the
demonstration, you must either provide
the reasonable accommodation or allow
that person to describe how he or she
would perform the job function.
There are many other important areas
to consider, but as you can see, avoiding
discrimination in the interviewing and
hiring process can be a matter of some
James R. Leverette is president of Randall
James Monroe Inc., a Dallas-based global
executive search consultancy. He can be
reached at Jleverette@Randall-James.com.