Stop the Hiring Lawsuit Fear

Stop the Hiring Lawsuit Fears

An Excerpt from: Hire Hotdogs Fire Baloney by Don Paullin

Paullin’s Point—The lawsuit is won or lost before the filing begins.

Hiring and Firing Systems Win Most Lawsuits by Preventing Them! Ten laws are listed below which essentially cover seven areas of discrimination. These laws apply to you and your company’s policies and actions regarding hiring, performance management, raises, promotions, and firing. Understanding all laws is an overwhelming task, but I will make it easy for you.

Know Ten Laws or Just One Thing!
You need to focus on one simple thing to be in concert with all laws! My safe harbor concept is simple; focus on one thing, the correct job description, and you are likely in concert with all laws and in legal or EEOC compliance. That is it; you only need to stay inside the job description and document for legal compliance to help prevent and possibly win lawsuits.

Employees Win Lotto with Legal Settlements and Judgments
The number of settlements or judgments over $100 million is startling and available to your eyes today on the Internet. The dollars get even more economically devastating because of the expenses in implementing court-imposed affirmative action programs and mounting legal defenses.

Think about the loss of management time, frustration, and reputation of the company when a big EEOC settlement becomes part of the public record.

Paullin’s Point—Dollars spent on employment discrimination claims make the cost of developing a hiring, firing and performance appraisal system all based on the job description seem like a penny investment.

This penny investment will potentially save millions of dollars.

It ain’t what men don’t know that gets them in trouble; it’s what they do know that ain’t.—Josh Billings, American Humorist

When you start playing with the legal questions and requirements, just remember what Josh said. I assume everything is illegal if I cannot prove it is job related. I suggest you do the same.

True or False—You are Innocent Until Proven Guilty?

Proven Guilty and Hanging is for Bad Guys, Not for Business People
Sounds a little harsh, given we have always been taught you are innocent until proven guilty. The legal systems in our Constitution are all based on the presumption of innocence.

That was true until Congress, in 1991, decided that the employer must prove innocence when charged with employment discrimination suits. Congress decided to add a little extra pain by affording claimants not only compensatory damages but punitive damages as well. Remember you must prove your innocence by proving you are legally compliant and not discriminating. You better have at least a hiring and firing system with documentation to avoid the hangman’s compensatory and punitive damage noose.

Many discrimination suits would have never been filed if a job description-based system had been used as the criteria for hiring, firing, promotions, and raises.

Hot Stove Principle: Everybody that touches gets burned the same
Hiring is a necessary event and actually more complicated and frustrating when you do not have a selection system. It is an Equal Employment Opportunity Commission (E.E.O.C.) legal mandate that you must treat all candidates equally. The general rule is that you cannot ask one candidate to be judged for hiring with one set of standards and ask another candidate to be judged for hiring with a different set of standards.

Caught in Court with your “Legal Suit Pants Down”
The good news is essentially the same laws apply to hiring, firing, reviews, and raises. Even better news is simply by focusing on the job description, you will go a long way in being compliant and more likely to stay away from employment discrimination suits. You don’t want to be caught in court with your documentation pants down and
your job description not showing up.

An Easy Overview of Employment Laws

The Civil Rights Act of 1964
Title VII of this act pertains to employment and prohibits discrimination because of:
Race
Color
Sex or Gender
Religious Beliefs
National Origin

The Age Discrimination in Employment Act (amended 1978)
Prohibits discrimination from Age 40 and over.

The Rehabilitation Act of 1973
Prohibits job discrimination against individuals with disabilities who are otherwise qualified. Applies to federal government, government contractors, and recipients of federal
financial assistance.

The Vietnam Era Veterans Readjustment Assistance Act of 1974
Protects employment rights of disabled and qualified veterans of the VietNam era. Applies to federal government, government contractors and recipients of federal financial assistance.

The Pregnancy Discrimination Act of 1978
Amended Title VII to add pregnancy and childbirth.

The Immigration Reform and Control Act of 1986
Prohibits the employment of any alien not authorized to work and requires two forms of identification as proof of authorization to work.

Equal Pay Act of 1963
Requires that men and women performing substantially equal work be paid equally.

The Americans with Disabilities Act of 1990
Prohibits discrimination against individuals with disabilities. All non-essential job activities must be eliminated from job descriptions and in selection decisions. Reasonable
accommodation must be made if it is not an economic hardship for employer.

The Civil Right Act of 1991
The burden of proof is placed on employers in cases of
discrimination and permits compensatory and punitive damages
in civil trials.

Family and Medical Leave Act of 1993
Allows up to 12 weeks of unpaid leave in a 12-month period
for: Birth, adoption, foster care of child; care for child, spouse or
parent; or because of one’s own health condition.

Making It Easy For Managers and Companies
The laws are numerous, and coupled with all the scenarios, are an ambitious task to weave into your hiring system. A simpler way is to work everything you do off of the job description. For legal compliance, simply stay with the job description for your hiring, firing, performance appraisals, raises, and promotions. There are two important reasons not to ask any questions that are prejudicial in these areas. One: It is illegal and will get you into major league trouble. Two (and maybe the most important to your company’s bottom line): You may knock out the person who could perform best and who would make you look like a superior manager.

Do You Wonder if What You are Doing is Legal?
The good news is you do not have to be a lawyer to figure out what questions are illegal. If you wonder if it is illegal…chances are it is. If you have any doubts about the question discriminating forget the question. You will generally stay out of problems if you just make sure that all your questions are job related and equal for all people.

The Uncomplicated Acid Test
There is a long list of illegal areas that you cannot question. Now for the list of areas in which you can develop questions: you should develop questions that are job related. Yes, you have it, a list of one—questions that are job related. This is the acid test and this removes the complication.

I know somebody will say there are some exceptions to the rules called bona fide occupational qualifications (BFOQ’s) from Title VII of the Civil Rights Act. My advice is forget them unless you have a bona fide legal defense fund.

Let’s do an EEOC test that I made up for an exercise in legality.

How many children do you have?
(Discriminates against women.)

Are you married?
(Discriminates against women.)

Have you ever been arrested?
(Person may have not been convicted.)

Do you have a college degree?
(You had better be able to prove that a college degree is essential to performing the job. The facts are the you can seldom prove this, and usually there are people who have performed that job without a degree. You can prefer a college degree. You can, however, require a medical degree for a doctor, a law degree for a lawyer and so forth because these types of professions cannot do the job without the appropriate degree.)

When did you graduate from high school or college?
(Age discrimination)

This job requires that you lift 200-pound bales of hay. Will that be a problem.
(OK, only if it is job related such as stacking bails of hay on a farm.)

Will you work the Sunday morning shift?
(OK, only if it is related and applied fairly to all regardless of religion.)

I will now weasel word out of the above test and tell you that it may or may not be correct, but it will cause you to think and decide on the safe side. The fact is that if you are not sure of the question, there are plenty of good questions to compose, so write another one that is perfectly job related and legal. (I provide you with over 300 job related questions.)

I am not an attorney, I work for a living! This information is not legal advice but only my opinion. Consult an attorney for legal advice. When interviewing, the ball is in your court and the courtroom will be your ballroom if your questions can be constructed as discriminatory.

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