Tag Archives | hiring

Employer to applicant: “Come back after you had the baby”

Can you guess what happened?  An EEOC lawsuit followed by a settlement, that’s what.  A Chick-fil-A franchise owner interviewed a pregnant applicant.  He asked her all kinds of questions about her pregnancy, didn’t hire her, but told her to come back and talk to him after she had the baby.  RUH ROH.  This is a classic example of what not to do when dealing with a pregnant applicant.

Learning points/reminders:

1.  Applicants are covered by the anti-discrimination laws, just like employees.

2.  Pregnant employees/applicants cannot be treated any differently than others, even if they come to you nine months pregnant!


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What the EEOC has to say about “integrity tests”

Integrity tests are personality tests used by employers to assess the tendency of applicants to be honest, trustworthy and reliable.  Reasonable expectations for prospective employers to have, right?  Yes, but beware the tests’ potential intersection with the anti-discrimination laws.  The EEOC recently weighed in, albeit informally, to offer employers some guidance.

A company that conducts such tests for third parties recently asked the EEOC to comment on the lawfulness of certain questions.  The test at issue asked applicants: (1) to describe their current use of methamphetamines; (2) to describe their current use of illegal, non-prescription drugs while at work; and (3) whether they would “take things from their employer without permission to get even if they felt that the employer (either the company or their boss) was treating them unfairly.”  The EEOC answered that the test questions are acceptable because they “do not ask applicants to disclose their arrest or conviction history,” the employer may ask applicants about current illegal drug use or illegal use of non-prescription drugs at work, and there is no preclusion under Title VII about asking hypothetical questions about how an applicant may react in a situation involving illegal activity.  This is good news for employers wanting to dig a little deeper into applicants’ so-called integrity.

But don’t be lulled into thinking all such tests are ok by the agency.  As the EEOC explained, an employer may violate Title VII if the evidence shows that a test was “designed, intended, or used” to discriminate against certain applicants based on protected characteristics (i.e., disparate treatment), or if the test results are used to screen out certain applicants in protected categories (i.e., disparate impact).

Practice pointer?  If you use these tests, run them by counsel to make sure you’re not running afoul of Title VII, the ADA, or other laws.


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Can you say this? “We are disappointed you didn’t tell us you were pregnant before we hired you”

In a word, heck no.  Pregnant applicants do not have any obligation to tell you of their condition.  And if you call them out on their failure to do so, you may find yourself facing an EEOC lawsuit, just like Annapolis Internal Medicine did recently.

A day after starting work as a receptionist, Elizabeth Rodriguez told a supervisor she was pregnant and asked her to keep this confidential.  The supervisor didn’t honor the request, and the office manager was none too pleased when she learned of Rodriguez’s condition.  She told Rodriguez she expected honesty and was “somewhat disappointed” that Rodriguez had hidden this fact during the interview progress.

What about this point that Rodriguez should have been “honest”?  Well, yes and no.  It’s ok to expect  and even demand honesty from your applicants and employees.  But there are exceptions.  Medical conditions, status in a protected category, and pregnancy are always excluded.

Even if it seems that as a matter of fairness, employers should know if the person they are about to hire will soon be on a maternity leave, the law says otherwise.  Do yourself a favor and make sure your managers know this arguably counterintuitive point.


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Behavior-based interviewing: assessing absenteeism

No doubt about it – absenteeism takes a huge toll on the bottom line.  One of the best ways to combat it is proactively, during the hiring process.  Absenteeism is generally a habitual problem for employees.  By using behavior-based questions to assess a candidate’s past behavior, you can get a pretty good sense of what to expect if he or she comes to work in your organization.  Some examples:

  • Tell me about a time when you showed up at work despite obstacles in your path;
  • Tell me about a time you skipped out of work because you didn’t want to be there that day;
  • Tell me about a time you were ultra-reliable;
  • Tell me about a time you didn’t come through for someone who was counting on you.

The possibilities are many, but you get the idea.  Use the interviewing process to assess candidates’ attitudes towards absenteeism – and train hiring managers to do the same.  It could save you a lot down the line.

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Ricci redux? Supreme Court hears another fire department race case.

Last June, in Ricci v. DeStafano, the United States Supreme Court ruled for white firefighters who sued the City of New Haven after it discarded a promotional test on which they scored highly, claiming the city’s concern about the test’s disparate impact on minority firefighters amounted to discrimination against the white firefighters.  (See our blog on the topic).  The case generated a tremendous amount of attention, as it highlighted the employer’s unenviable position between a rock and hard place: promote the high-scoring white firefighters and risk a disparate impact lawsuit by the minority firefighters, or discard the test and be sued by the white firefighters.  In Ricci, the employer chose the latter, only to be told by the Court it should have selected the former option.

The case was also of interest because then-Supreme Court nominee Sonia Sotomayor was on the appellate court panel that found against the white firefighters.  All eyes may be on her in the next round, in Lewis v. City of Chicago.  The case involves a 1995 test by the city’s fire department.  While the test takers were only slightly less than 50% African-American, only 11.5% of the test takers scored high enough to be likely to secure a job.  Approximately 6000 African-Americans who were not hired sued the city, alleging the test had an illegal disparate impact.

The Supreme Court heard oral arguments in the case yesterday.  It is not yet clear whether they will decide the case on a mere timing issue (the plaintiffs may have missed the statute of limitations on their claim, as the Seventh Circuit held when it dismissed the suit), or it may tackle the broader issue of discrimination claims based on test scores.  Stay tuned.

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College-educated white men fare far better in the job market than their African-American counterparts

The Bureau of Labor Statistics recently released figures demonstrating that college-educated black men have struggled nearly twice as much as their white counterparts in terms of finding jobs in the economic downturn.  On December 1, 2009, New York Times reporter Michael Luo wrote about this troubling trend in an article entitled In Job Hunt, College Degree Can’t Close Racial Gap.  On December 7, NPR aired a segment on Talk of the Nation called Unemployment and African-Employment Men.  Both pieces contain anecdotal evidence from college-educated black men, including some from prestigious institutions such as Yale University, describing how the application process seemed to turn south the moment the hiring managers realized they were black.    

In recent times, various academic studies have made clear that racism is alive and well when it comes to the job market.  For example, a 2003 American Economic Review study called “Are Emily and Greg More Employable than Lakisha and Jamal?” found that applicants with “white-sounding” names received twice as many employer responses as did those with “black-sounding” names.  But what accounts for the 2009 trend specifically?  Theories abound.  Some speculate that the election of President Obama has actually created a backlash against blacks.  Others surmise the stereotypes about affirmative action programs negatively impact highly-educated blacks, who would-be employers might assume they only got as far as they did because of affirmative action.  Still others claim informal networking programs that largely influence hiring decisions have a disparate impact on black males.  (See our September 16, 2009 blog on this topic).

Whatever the reason, the fact that black male college graduates have an unemployment rate nearly twice that of their white counterparts (8.4% compared to 4.4%) is cause for concern.  For proactive employers, awareness may be the best defense to falling prey to this trend (and thereby avoiding unnecessary and costly litigation as a result).  Have your hiring managers received training on the discrimination laws?  Have you invested in sensitivity sessions, whether in a group or one-on-one, aimed at raising awareness of subtle, even unconscious bias (dubbed “neo-racism” in Luo’s NY Times article)?  If not, now is as good a time as any.

grad hats

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The Top Five Reasons Not to do an HR Audit

1.   You’re not Sure what your HR Department Does and You Don’t Care

One of the key areas of an HR audit is evaluating whether your organization has allocated an appropriate level of resources to HR issues and making sure the HR function is aligned with the organization’s strategic business principles. A well functioning HR department can be critical to your organization’s overall success.

2.   You Like Spending Money Defending Employment-Related Claims

Regular HR audits result in fewer employment-related claims, including EEOC complaints and lawsuits.

3.   Compliance with Federal, State and Local Laws is not a Top Priority

One of the primary focuses of an HR audit is your organization’s compliance with employment-related laws relating to discrimination, harassment, FLMA, disabilities, and benefits.

4.   Employee Morale is not a Concern

An important function of the HR department is to serve as a resource for employees and to gauge employee morale and satisfaction. A well-run HR department that is trusted and open to employee complaints and concerns not only minimizes liability, but results in a more satisfied and productive workforce.

5.   The Hiring and Retention of a Top-Quality Workforce is not Important

An HR audit will analyze your organization’s hiring, on-boarding, performance management and termination procedures in order to ensure that you are hiring and keeping the best employees.

The point is that every dollar spent on an HR audit will save you several in risks avoided. Your organization can use the audit information to correct deficiencies that can lead to lawsuits, increased turnover and other liabilities. If your organization is sued, a properly executed HR audit can provide a valuable defense. Last, but certainly not least, effectively implementing the results of an HR audit will have a positive and lasting effect on your organization’s overall performance and culture.

Warren & Hays conducts thorough and effective HR audits for all sizes and types of organizations.

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