Employers Should Review Hiring Processes to Limit Chances for Bias

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By Patrick Dorrian

Internal reviews for hiring bias risks should include all steps and documents in a company’s recruitment and hiring processes, a lawyer who represents employers told Bloomberg BNA.

Employers should review their hiring processes and results as well as trends to make sure they line up with what’s expected based on the local labor pool for the job or jobs in question, Peter J. Gillespie said.

Indeed, federal employment rights watchdog the Equal Employment Opportunity Commission, in agency guidance, has warned employers of the risks of job discrimination at the various stages of the hiring process, including in job advertisements, recruitment materials and methods, job applications, and background checks.

“That makes it important to look at each piece of the equation and each step to make sure things line up with what’s required by the law,” Gillespie said. He is of-counsel with Laner Muchin Ltd. in Chicago.

Companies should undertake “a big picture, holistic review” of what they’re doing right and wrong, he said, especially in light of the current nationwide focus on hiring practices and a spike last year in hiring bias charges filed with the EEOC.

‘First Line of Defense’

“The employment application is the employer’s first line of defense,” according to management-side attorney Claudia D. Orr.

Companies should account for—and take advantage of—the differences in local employment laws in their job applications, she said. For example, in Michigan, where she practices, it’s legal for an employer to get employees and applicants to agree to a period as short as 180 days to bring a bias claim rather than the three years permitted under state law. They also may shorten the state’s 182-day window for requesting a disability-related job accommodation, Orr said.

“But these are only defenses to the extent the shortened periods are disclosed,” so they need to be included in a company’s job application for the employer to gain the benefit, she said. Orr is a senior attorney with Plunkett Cooney P.C. in Detroit.

For companies that hire regularly, applications are even more important than an employer handbook, she said. But employer handbooks also need to be carefully crafted, Orr said.

“I don’t like for my clients to just have one handbook organization-wide,” she said. Instead, companies want a handbook that covers the general rules overall as well as the local rules and laws that apply to the particular location—sort of a “state supplement,” she said.

Like job applications, handbooks should be prepared and reviewed by an attorney skilled in or knowledgeable of local law, Orr said.

Employers also need to be sure that their job descriptions are up-to-date and aren’t a potential source of claims, Orr and Gillespie told Bloomberg BNA.

Job Advertisements and Hiring Screens

There are “two big things” employers need to look for when putting together or reviewing recruitment materials, plaintiffs-side attorney Donna M. Ballman said. She is a solo practitioner in Ft. Lauderdale, Fla., and the author of Screw You Guys, I’m Going Home, a blog on employee-side employment law issues.

First, she said, the employer should ask if the job advertisement or recruiting material implies the company is seeking candidates only from a certain group or groups. The second question is whether the ad or material could disproportionately exclude or discourage applicants from a certain protected group or groups.

Gillespie said companies also need to be careful if they use or are considering using artificial intelligence to aid in the recruitment or initial applicant-screening process. They should vet the software or application provider carefully to be certain it can answer questions about how the program or app was tested to make sure it actually reduces the risk of bias, he said.

The employer also should take a good look at the job description for the position it’s looking to fill using the program or app, he added. The position description, which typically includes a job’s qualifications, duties, and responsibilities, usually will be what the artificial intelligence uses to screen applicants, Gillespie said.

Some employers use personality assessments as a screening or testing tool. These assessments also come with risks.

“I’m not a fan of personality assessment tests, which some of my clients use,” Orr said. If such tests aren’t properly drafted, they may stray into seeking protected mental health or other medical information from a disabled applicant, which could end up triggering liability risks under the Americans with Disabilities Act, she said.

“Personality assessments can also screen out minorities,” who sometimes don’t answer all of a test’s questions, she added. For example, because of a potentially different worldview—including first-hand experiences with the police—minorities may object to questions about how they respond to authority or whether they would turn in to the employer lost property they found in the workplace, Orr said.

Another concern with personality assessments is that even though they may be advertised by the vendor as “validated” for purposes of employment laws, that representation may not offer the employer much insulation from potential liability from bias claims, Orr said. “If the vendor won’t indemnify you,” that’s a warning its test may be inherently dangerous.

What Can Be Asked During Interviews?

Improper or questionable inquiries of an applicant during a job interview also may create problems.

No interview questions “are per se illegal,” Ballman said. But there are some inquiries that may end up creating evidence of discrimination, she said.

For example, it’s best to avoid asking a mixed-race candidate, “What are you?” or a woman with children, “How are you going to juggle childcare duties?” she said.

Regardless of legal concerns or the possibility of creating unwanted evidence of hiring bias, many job candidates believe certain questions “are illegal,” Ballman added. Thus, being asked those questions “really offends them,” she said.

She advises her clients to answer such questions anyway and to note the fact that they were asked, she said. “That way, if the applicant gets the job, maybe it’s not an issue.” But it may prove to be evidence of bias if the applicant isn’t hired or if problems develop between the applicant and the employer post-hire, Ballman said.

“Employers need to properly train employees who conduct hiring interviews” or they’re going to get sued and lose good people, she warned.

Background Checks Also Risky

Applicant background checks, from drug screenings to credit checks to criminal history reviews, also are fraught with potential peril for employers.

Orr said she advises her clients not to use third-party vendors to do credit checks on job applicants except for positions the company hires for regularly.

Using a third-party credit checker can trigger applicant rights and employer obligations under the Fair Credit Reporting Act, Orr said. Third-party vendors are considered to be “reporting agencies” under the FCRA, and a credit report provided to an employer by a reporting agency triggers the right of the applicant to correct the record before the employer can lawfully make a hiring decision under the law, she said.

“That can delay the hiring process, which is especially problematic if the job is a key position,” she said.

She said she recently had a client use a third-party vendor to screen. When it came back with a negative credit report on the applicant, the employer had to give the applicant a chance to challenge the report.

That “delayed things.” If the employer had gone to the government directly for the records, it wouldn’t have been delayed in filling the position, Orr said.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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