Those who make hiring decisions should be trained on policies and aware of potential liability.
by RASHMEE SINHA, ESQ.
Interviews can be tricky. Savvy hiring managers rely on this process because they can glean a ton of information about a candidate by asking just a few, aptly chosen questions. While it is indeed an invaluable tool to determine if a candidate is a suitable fit for a company, and the best opportunity to assess if the individual’s abilities, values and experiences align with the firm’s overall corporate culture, at the end of the day, an interview is a personal exchange between people, leaving recruitment decisions vulnerable to subjectivity and biases that may unintentionally influence a hiring decision (i.e., preconceived stereotypes, attractiveness, expectations and intuition). Employers, including hoteliers, should proceed with caution and frame questions that legitimately relate to the candidate’s ability to perform. In this article, I discuss several best practices below to minimize the potential for a discriminatory failure to hire claim.
In today’s litigious world, even the most innocuous questions can be perceived as discriminatory. The United States Equal Employment Opportunity Commission, which enforces workplace discrimination laws, contends that policies or practices which significantly disadvantage individuals, including job applicants on the basis of a protected characteristic – such as race, color, sex, national origin, age, religion, disability, pregnancy, sexual orientation or genetic information, to name a few, are prohibited. Employers should conduct standardized interviews and tailor questions to the job description or hiring criteria for the position that needs to be filled; that is, ask the same questions every time.
Avoid questions that may be perceived as discriminatory.
When jotting down notes during the interview, be careful, because in the event of litigation, your notes are subject to discovery. For example:
Evidence of Discriminatory Bias:
Hispanic woman in sweats
Pregnant with child-care obligations
Opt for Neutral Language:
Individual dressed in casual attire
Requires fixed scheduling
Remember, while it is technically not illegal to ask: “are you married?”; “where are you from?”; “how old are you?”, if an individual files suit and your interview notes or other evidence reveal that the answers to these questions were improperly relied upon during the recruitment process, there may be potential liability for discriminatory failure to hire.
Stick to Questions That Relate to the Individual’s Qualifications and Competencies.
As implied above, to ensure compliance, tailor your questions to the job description. For example, you may ask:
- What motivated you to apply for this position?
- What parts of the job would you find the most challenging?
- Can you give me an example of how you have used your customer service skills in the past?
- Why are you leaving your current employer?
Conduct Background Checks at the Appropriate Time.
To ensure a candidate is qualified to perform the duties of a position in a responsible, safe and reliable manner (and to avoid a potential negligent hiring claim), companies should pre-screen applicants to identify individuals whose resumes and experience meet the job qualifications before initiating a background check. If an applicant has a prior conviction, the company should carefully consider the circumstances of the conviction and whether it would pose an undue risk to hire the employee. To ensure that all qualified candidates are considered fairly:
- Inquire about previous arrests and/or convictions at the appropriate time. Employers should carefully consider developing a policy and ensuring that job relatedness and business necessity are justified for considering criminal records in making their employment decisions. Such a policy must distinguish criminal arrests (which do not necessarily mean that the person committed a crime) from criminal convictions. While having a criminal record is not listed as a protected category in Title VII of the Civil Rights Act of 1964, if the job applicant contends that his/her criminal record was improperly considered to buttress a claim based on race, color, religion, sex or national origin, Title VII liability may attach. Certain state laws have specific restrictions on these matters. Arbitrary rules prohibiting prior convictions as of a set date should be avoided.
- Conduct credit checks if allowable. Under the Fair Credit Reporting Act, credit history may only be done for permissible purposes, including for hiring and promotion decisions where the applicant has provided written authorization. Employers must provide the credit reporting agency with written certification from the applicant or employee and that the results of the background check will not be used for any other purpose prior to the initiation of a background check.
A number of jobs within the hotel industry, at various levels of pay and responsibility, involve job requirements and circumstances that support the use of background checks. As cyber-crime and security data breaches are becoming more prevalent (e.g., Equifax, Target and Home Depot), conducting employee background checks are more important than ever. Hotel employees potentially have access to company financial, proprietary and other confidential information from the moment a guest reserves a room until his/her departure: including names, addresses, phone numbers and credit card information. Additionally, employees may have access to hotel guests’ private rooms, their temporary home, where items such as credit cards, checkbooks, personal belongings and other valuables are kept. Guests have an expectation of personal safety and privacy. All of these factors generally support conducting background checks.
Managers and employees who make hiring decisions should be trained on policies and aware of the potential for liability to ensure that hiring decisions are based upon legitimate criteria and in compliance with federal, state and local laws. If you have not already done so, consider purchasing Employment Practices Liability Insurance coverage to protect your business against workplace discrimination, harassment and other types of employment claims. ■
Rashmee Sinha is senior counsel at Peckar & Abramson, P.C. She advises employers and management in matters including employment. Her goal is to enable clients to comply with the myriad of state and federal laws to succeed in their business, mindful of the challenges facing businesses and the importance of cost effectiveness. She has advised and represented businesses in a variety of industries including restaurants, hotels, and other entities in the hospitality and entertainment industries. Ms. Sinha has been ranked as a Top Attorney in 2017 by New Jersey Super Lawyers. She can be contacted at (201) 343-3434 ext. 2248 or [email protected] Please visit http:www.pecklaw.com for more information.
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