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Hiring Discrimination

Job descriptions need to be well drafted to avoid discriminatory effects.

The skills and educational requirements listed must be necessary to perform the job.  

The job functions noted must be essential or else employers might violate the Americans with Disabilities Act (ADA).  If some duties are only marginal or tangential to the primary or core duty, then they should either not be noted or it should be explained that they are not required.  For example, take a receptionist position whose description includes changing a heavy water bottle once per week.  If the employer requires that the applicant be able to lift twenty-five pounds, the employer might be violating the ADA.  Being able to lift this weight might be a desirable skill, but the employer should be clear in the job description that it is not essential.  There are, of course, exceptions, but they are extremely limited.

As previously noted, employers might inadvertently discriminate in their ads.  Employers should use gender-neutral words such as salesperson instead of salesman.  While this might seem petty, a litigious applicant might point to the ads, job functions, or other “inappropriate” business documents in support of their claim that the employer did not hire him or her for discriminatory reasons.

Medical tests are another problem area.  Employers should not conduct any before making an offer.  Once an offer is made, employers can make it conditioned on the applicant passing a medical exam.  However, the exam must be required of all applicants.  If employers withdraw a conditional job offer because of the result of a medical exam, they must be able to show that the reasons were job related or that their hiring would have directly threated the health and safety of others.  Employers would also have to show that they could not make a reasonable accommodation or that it would create an undue hardship.

Searching applicants' backgrounds
Employers rely on consumer reporting agencies (CRA) to gather information about applicants.  The Fair Credit Reporting ACT (FCRA) regulates this field.  Employers who merely check applicants' references must adhere to the FCRA's rules, if they use CRAs to reach out to references.  It is important for employers to obtain written consent from applicants before requesting this type of information.  What if employers find something from the report prepared by a CRA that leads to them not hiring a certain applicant?  

In those cases, employers must give the applicant a copy of the consumer report and a copy of A Summary of Your Rights Under the Fair Credit Reporting Act.  Employers must also give the applicant the CRA's contact information, tell the applicant that the CRA did not make the decision to not hire him or her, inform the applicant that he or she can dispute the CRA's information, and that the applicant can get a free consumer report from the CRA if he or she requests it within sixty days.f


My primary focus is on SMALL BUSINESS LAW. However, I also offer the following services: business consultation, business public speaking & argumentation, Veteran issues, and in some cases traffic & criminal defense.

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