The risk of violating federal, state, and local employment laws is present even before an employment relationship exists. The pre-employment process, including recruiting and interviewing, exposes employers to potentially significant legal liability. This post provides an overview of the legal risks associated with recruiting and interviewing under federal law and Iowa law, and identifies practical steps to minimize those risks.
In particular, this post:
- Explains the risk of inadvertently creating a for-cause employment relationship;
- Identifies the risks and potential liability for discrimination claims at various stages of the pre-employment process;
- Identifies exceptions to the general prohibition against pre-employment discrimination; and,
- Provides practical steps for employers at each stage of the pre-employment process.
RISK OF CREATING FOR-CAUSE EMPLOYMENT RELATIONSHIPS
In Iowa, employees are generally presumed to be at-will; although employers may inadvertently convert an at-will employment relationship into a for-cause employment relationship during the interviewing and recruiting process.
At-will employment means that either the employee or employer may terminate the relationship at any time, for any reason, unless the reason is unlawful (such as a discriminatory reason).
For-cause employment can only be terminated for a reason specified in an employment contract as grounds for termination. Grounds for termination can include anything lawfully contracted by the parties, such as termination for “cause,” disability, breach of the agreement, or other reasons.
The ease with which at-will employment can be converted to for-cause varies from state to state. The three most common ways that at-will employment is converted to for-cause employment are:
- Job Security. Conversion can occur if the employer makes oral or written representations about the nature of the employment relationship to prospective employees. Oral or written statements suggesting job security, permanent employment, or that a job will be available provided that the employee performs their job, have been held to create a for-cause employment relationship.
- Introductory Periods. Representations regarding an introductory or probationary period can also alter the at-will employment relationship by suggesting heightened employment security following the introductory period. Employers should be careful not to imply any guarantee or security related to continued employment in policies describing probationary periods.
- Discipline Policies. Employers should also be careful describing progressive discipline policies (that is, policies that outline progressively more severe disciplinary steps for repeat behavior) because those policies can imply that certain steps must be taken before an employee can be terminated, negating the at-will nature of the relationship.
The following tips will help protect employers from claims that an employment relationship has been converted from an at-will relationship to a for-cause employment:
- Ensure that all employees involved in recruiting, interviewing, and hiring understand the difference between at-will and for-cause employment and that they are prohibited from making statements that limit or modify the at-will status;
- Review written policies, handbooks, offer letters, and employment agreements to ensure no language could be misconstrued as a representation about the permanency of employment;
- Decide whether probationary periods and progressive discipline policies are necessary. If they are, those policies should expressly state that they are not intended to alter the individual’s at-will employment status;
- Include a stand-alone disclosure at the beginning of the employment handbook stating that the employment relationship is at-will; and,
- Make statements about the at-will employment relationship as conspicuous as possible, including using bold and underlined text in all written material where that language appears.
RISK OF DISCRIMINATION CLAIMS
Discrimination claims can arise at any point during the pre-employment process, from advertising and describing a vacancy, to making an offer of employment. Employers should be aware of the possibility for discrimination claims and ensure that employees involved in the pre-employment process are trained to avoid potentially discriminatory practices.
In addition, the Equal Employment Opportunity Commission (EEOC) regularly sends testers through recruiting and interviewing processes to ensure compliance with federal employment anti-discrimination laws. The EEOC can bring independent claims against an organization it believes has engaged in discriminatory practices.
Protected Classes Under Federal Law
Federal anti-discrimination laws prohibit employment discrimination on several bases, including:
- Sex (including pregnancy)
- National origin and citizenship
- Age (40 and over)
- Disability (including perceived disability)
- Genetic information
- Past, current, or prospective military service
Most states and some municipalities also have anti-discrimination laws that cover various protected classes. Some state and local laws extend greater rights and protections to employees and applicants, such as by treating marital status, sexual orientation, and smokers as protected classes.
Iowa law expands the Federal anti-discrimination laws by also prohibiting employment discrimination on:
- Disabiliy (including HIV-positive status)
- Sexual orientation
Multi-state employers should consider using policies, forms, and other materials that are specific to a particular state or municipality to ensure compliance across all jurisdictions. Employers may also consider adopting policies prohibiting discrimination against generally recognized protected classes, even if not all are protected in each state where the employer operates.
The Mechanics of Discrimination Claims: Disparate Treatment and Disparate Impact
Discrimination takes two basic forms:
- Disparate treatment. Disparate treatment is the most blatant and obvious form of discrimination against applicants and employees based on their protected class. Disparate treatment discrimination occurs when an employer treats one applicant or employee differently than a similarly situated applicant or employee because of that individual’s race, color, religion, sex, or membership in another protected class.
- Disparate impact. Disparate impact discrimination is a more subtle form of unlawful conduct that occurs when a seemingly neutral policy or practice unduly disadvantages individuals on the basis of their protected class. For example, minimum height requirements and physical strength tests are facially neutral but may have a disparate impact on women.
The “BFOQ” Exception
Federal law provides for a limited exception to the prohibition against discrimination for a “bona fide occupational qualification” or “BFOQ.” The BFOQ exception applies where an employer can show that its preference for a particular characteristic, such as religion or sex, is reasonably necessary to the normal operation of that particular business or enterprise. The EEOC and federal courts construe the BFOQ exception narrowly. Before relying on a BFOQ defense, employers must consider if the trait is necessary for the position or business operations.
Discriminatory conduct during the pre-employment process can include, for example:
- Failure to hire;
- Discriminatory compensation;
- Discriminatory terms and conditions of employment (such as access to training);
- Discriminatory classification or segregation of employees or applicants;
- Discriminatory preferences in job postings or advertisements;
- Failure to provide reasonable accommodation in the application process under the Americans with Disabilities Act (ADA);
- Failure to provide reasonable accommodation for an employee’s sincerely held religious belief; and,
Iowa law explicitly prohibits the following conduct:
- Any person to refuse to hire, discharge, or otherwise discriminate in employment against any applicant or employee because of that employee’s or applicant’s protected class (Iowa Code § 216.6(1)(a)).
- An employer to advertise or publicize that individuals of any protected class are unwelcome, objectionable or otherwise unacceptable for employment, unless the exclusion is based on the nature of the occupation (Iowa Code § 216.6(1)(c)).
- Any person to request or require an HIV test as a condition of employment, or to terminate or affect the terms, conditions, or privileges of employment of any employee solely as a result of the employee obtaining an HIV test (Iowa Code § 216.6(1)(d)).
- An employer and an employee or prospective employee to make an agreement concerning employment, pay, or benefits in return for taking an HIV test (Iowa Code § 216.6(1)(d)).
- An employer to pay wages to an employee in any protected class at a rate less than the rate paid to other employees who are employed within the same establishment for equal work on equivalent jobs (Iowa Code § 216.6A(2)(a)).
- An employer to have a formal or informal policy excluding persons from employment or application for employment because of pregnancy (Iowa Code § 216.6(2)(a)).
- Consider whether individuals lacking a particular qualification could perform the job in question;
- Ask a qualified human resources professional or attorney to examine job descriptions to ensure that they comply with anti-discrimination laws;
- Consider stating in the job description that the organization considers the particular requirement to be a BFOQ and cite the statutory section on BFOQs to minimize risk of discrimination claims;
- Apply the BFOQ consistently.
WHERE DISCRIMINATION CAN OCCUR
Claims of discrimination can arise throughout the recruiting and interview process. Areas that require special attention by employers include: the method of advertising openings, the language used in job descriptions, the questions on employment applications, the selection of interviewees, the timing of interviews, the questions asked during an interview, and pre-employment tests.
Advertising is generally targeted to a particular audience and where a company advertises job openings may exclude certain groups. Limited or targeted placement can form the basis of a discrimination claim, particularly if the same limitation continues over time. For example, if an employer only advertises job openings in publications with audiences that typically exclude a particular protected class, such as an ethnic or age group, the employer may be subject to a claim that it disproportionately excluded a particular group.
Similarly, an employer that only advertises positions by word of mouth can be subject to a discrimination claim where its current workforce is predominantly or exclusively members of a particular class. A plaintiff may allege that the employer is intentionally perpetuating the current limited makeup of the workforce by only advertising the position by word of mouth.
- Consider the methods and locations of job opening advertisements to ensure coverage across protected classes;
- Request statistics about the target and actual audience of particular media to ensure protected classes are not excluded;
- Advertise job openings in a variety of media designed to reach separate audiences; and,
- Consider whether the existing workforce is homogenous and if so, whether advertising strategies contributed to that result. Diversify those strategies to reach a broader audience.
Language of Job Descriptions
Employers should consider the skills and experience actually required for the job to ensure that each requirement is defensible. For example, a job description requiring that the individual must be able to lift up to 50 pounds may have a disparate impact on women. Where a job requirement tends to discriminate against or is biased in favor of a particular class, employers should ensure they can justify that requirement as a BFOQ.
A job description should never suggest a non-BFOQ preference for or bias against any particular protected class, whether explicit or implicit. For example, a job description should not use gender-specific terms, such as “he” or “she” or “waiter” or “waitress,” or express a preference for a characteristic that may indicate a violation of any other protected class, such as “young and energetic.”
A job description should also identify the essential functions of the position. These are the basic duties that an individual must be able to perform, with or without reasonable accommodation, to be qualified for the job. The EEOC and courts will generally consider these written requirements as evidence of the actual essential functions of the job. Essential functions can protect employers from discrimination claims by individuals who cannot perform these job duties even with reasonable accommodation. Employers should be able to justify any essential functions identified for a particular position.
Employment applications should be designed to gather standardized information about applicants and provide employers with the opportunity to use objective information to screen unqualified applicants. Employment applications also allow prospective employers and employees to share information in a consistent format, which helps deter discrimination claims.
As with job opening advertisements, applications should be accessible in a variety of media and locations to avoid claims of disparate impact. For example, applications should not be available only online because potential applicants may have limited access to the internet or require assistance with the application. Reasonable accommodation by the employer, such as making applications available in large print, audio file, or braille, or providing assistance to individuals filling out the application, may be required.
Federal, state, and local law prohibits the use of employment applications that express a preference or limitation with regard to a protected class unless based on a BFOQ or other lawful exception. Employers should review all application forms to ensure that they do not express an unlawful preference or limitation or request information about a protected category. Questions on applications should be limited to those that reasonably relate to the job for which the applicant is applying.
Areas of inquiry employers should avoid on employment applications may include, for example:
- National origin
- Marital status
- Childcare plans and plans to have children in the future
- Criminal history
- US citizenship (as opposed to the right to work legally in the US)
- Medical history or disability
- Workers’ compensation history
Employers should also include in employment applications a statement that the employer is an equal opportunity employer and that any information collected is solely to:
- Determine suitability for the position.
- Verify identity.
- Maintain employment statistics of applicants.
Employers should also be aware that notations on applications or resumes may suggest that the employer unlawfully considered a protected characteristic in the hiring decision.
To avoid actual or perceived discrimination in the selection of interviewees employers should:
- Ensure that only those individuals whose qualifications are best matched to the written job requirements are selected for interviews;
- Consider documenting the reasons for selection or non-selection to minimize the risk of discrimination claims; and,
- Use multiple decision makers to ensure that no one person’s biases, explicit or implicit, are allowed to affect the hiring process.
Location and Timing of the Interview
Employers should accommodate reasonable requests to modify interview locations and timing, such as by providing wheelchair access or an accommodation for sight or hearing impairments. Federal law requires covered employers to provide reasonable accommodation to qualified individuals with disabilities, including both applicants and employees, unless doing so would cause an undue hardship. Examples of undue hardship include excessive cost and major disruption.
Inappropriate interview questions create a risk of discrimination claims. Although polite personal conversation often accompanies an interview, even indirect or inadvertent questions about a protected class characteristic can provide grounds for discrimination claims. For example, asking an applicant when they attended a particular college or asking a woman if she has children can suggest an age bias or a bias against marital or family status. Interview questions should be limited to those that reasonably relate to the job for which the applicant is applying.
Employers may require applicants to take pre-employment tests to demonstrate various skills and traits, such as:
- Computer, typing, and other work skills;
- Cognitive and physical abilities;
- Personality traits;
- Emotional intelligence; and,
- Language proficiency.
While pre-employment tests can help the employer screen and select applicants for a job, they also present liability risks if the tests are not valid, accurate, or properly implemented. Before performing any kind of pre-employment testing, employers should consider whether the test is absolutely necessary to evaluate candidates. Where it is not, employers should consider eliminating the test to avoid the associated potential liability.
Employers should ensure that accurate validity studies are available in the event of a challenge by the EEOC or other enforcement authorities. The validity of pre-employment testing is measured using jurisdiction-specific standards. For example, the EEOC has developed the Uniform Guidelines on Employee Selection Procedures (UGESP), a set of guidelines to help employers comply with Title VII and federal equal employment opportunity requirements. The UGESP apply only to those protected classes recognized under Title VII (race, color, religion, sex, and national origin). The guidelines are somewhat complicated, dividing testing into three different categories (criterion-related, content-validation, and construct) and outlining validation studies for each.
Employers are not strictly bound to comply with the UGESP, but courts give the guidelines weight in assessing the validity of various employment tests. Courts are also mindful of the cost that can be associated with UGESP compliance and have suggested that deviating from the guidelines may be acceptable for valid reasons, including the cost of strict compliance. The employer has the burden to demonstrate a test’s validity, however, and may not solely rely on the assurances of the vendor providing the test.
Pre-employment tests should be applied uniformly. For example, employers may test language skills where proficiency in a particular language is an objective job requirement but should ensure testing is uniform and that no assumptions about language proficiency are made based on national origin or citizenship.
Finally, the Employee Polygraph Protection Act prohibits most private employers from using lie detector tests either for pre-employment screening or during the course of employment.
Carefully consider whether a test is absolutely necessary to evaluate candidates. If not, consider eliminating the test to avoid the associated potential liability.
- Evaluate the test’s potential for disparate impact;
- Consider if the test invades an applicant’s privacy;
- Understand how feedback is given and how data is stored;
- Ensure that accurate validity studies are available to support the test should it be questioned by the EEOC or other enforcement authorities;
- Ensure the test can be appropriately administered and scored;
- Apply the test uniformly to all applicants for the relevant position;
- Provide reasonable accommodation for individuals with a disability;
- Understand federal, state, and local restrictions on the type of test considered. Separate requirement apply to different types of tests, such as drug and alcohol testing and medical screening;
- Monitor changes in job requirements and update pre-employment tests if necessary;
- Ensure that managers understand the effectiveness, limitations, and appropriateness of tests for specific jobs; and,
- Consider hiring an expert to assist in measuring the validity of any pre-employment test.
Candidate selection is an obvious target of employment discrimination claims. To avoid the influence of explicit or implicit discriminatory bias in hiring, candidate selection decisions should be:
- Made by committee.
- Based on job-relevant criteria.
Additionally, employers should document the reasons for both candidate selection and non-selection. Documentation of final hiring decisions can support an employer’s defense if those decisions are later challenged.