How to Avoid a Discrimination Lawsuit When Hiring

This article is from June 2012 and may contain outdated material.

Federal, state, and local laws make hiring new employees a potentially perilous process. What might seem perfectly innocuous—making small talk during the interview, for example—could land your practice in hot water.

Here’s an overview of how to avoid some common pitfalls during the hiring process and steer clear of a lawsuit.

Top Three Tips

1. Know the law. There are several, specific questions that you shouldn’t ask an applicant. “You have to know what not to ask,” said Nancy Baker, practice administrator with the Elander Eye Group in Santa Monica, Calif. “You can’t ask if they go to church, if they’re married, or if they have children. You just can’t. Discrimination is discrimination; protected classes are protected classes.” (See “Topics to Avoid” below.)

And even though you may be aware that you can’t discriminate on the basis of such factors as a person’s race or age, the nuances of antidiscrimination law can trip you up.

“Any question that’s going to elicit information in any of the protected classes is not acceptable,” said Robert A. Wade, JD, a partner in Wade, Goldstein, Landau & Abruzzo in Berwyn, Pa. “Your questions need to be specifically job related and based on the actual job description, such as, ‘Are you able to lift 50 pounds?’”

2. Be consistent. Consistency is crucial. “I do the same thing with every single person, every single time,” said Ms. Baker, who is a member of the AAOE board of directors. “That way, if there ever is a question, I know that I’ve followed my protocol. The way I think of it, it’s like when my boss does his cataract surgery: He has a routine and never deviates from that. It’s that one time you take your eye off the ball that will be the problem.”

She added, “One of our staff members can refer an applicant, or it can be someone I’ve known for years, but I treat them the same way I treat any other applicant. They get asked all the same questions; they take the same test; they still provide signed permission for a background check; the background check still gets done.”

3. Befriend a labor attorney. “Have a relationship with a labor attorney,” recommended Elise Levine, MAG, CRC, OCS, practice administrator and director of clinical research for the North Valley Eye Medical Group in Mission Hills, Calif. “You don’t have to have a lawyer on staff or even on retainer, but you want to have an ongoing relationship with someone you can run things by.”

One of the most compelling reasons to work with a labor attorney has to do with your office and employee manual, said Ms. Levine, who’s also the AAOE chairwoman. “You should have a policy manual, and the only way to really protect yourself and to have a good one is to work with a labor attorney. That sets you up for protection—you’re literally following the letter of the law in your state.” The attorney can also review your job application form to ensure that it is legal and valid in your state, she said.

In addition, a good labor attorney can brief you on state and municipal antidiscrimination laws, some of which are more restrictive than federal laws.

Where Are the Common Pitfalls?

Hiring ads. “A lot of people aren’t very good ad writers,” said Ms. Levine. “You want to write your ad in such a way that helps you avoid having to ask inappropriate questions during an interview. Be very clear: ‘Staff is required to work every other Saturday,’ for instance, or ‘Office hours are 7 a.m. to 6 p.m., Monday through Friday.’”

Personnel manuals. “A good manual sets the tone for whom and how you hire,” said Ms. Levine. And, as with a well-written ad, it can help you weed out inappropriate candidates. “For example, you can have information in there regarding dress codes and piercing and tattoo policies.”

She added, “Don’t use any of the premade manuals, and don’t have someone send you theirs and copy it, even if it’s very good. For instance, every state has its own quirky laws, and every practice’s applications of the manual are different, so you need that legal point of view.”

Casual comments. There’s nothing wrong with having a friendly conversation with a candidate. However, some casual questions can backfire. “Things that you might think of as being part of a general conversation can be problematic, such as ‘Where do your kids go to school?’ or ‘How long have you lived here?’ The problem is, once you’ve asked, you’ve shifted the burden of proof when it comes to a potential lawsuit,” Mr. Wade said.

Documentation. When it comes to taking notes during an interview, the general recommendation is: Be extremely careful, as all documentation will be subject to the pretrial process of discovery.

“The way I interview, everyone gets the same questions, and I write down the answers to their questions,” Ms. Baker said. “Beyond that, I write down very little. That said, it’s amazing how much information people will volunteer. They’ll tell you, ‘I have three special-needs kids under the age of 10, but my mother takes care of them.’”

However, if you write any of that down, you have to be able to document that they volunteered the information and you didn’t ask for it, which is “a little sticky,” Ms. Baker noted. “One way to overcome that is to have a second person in there with you, so that you have a witness.”

Ms. Levine noted, “I don’t write anything down, and I never write on the original resume that goes into the file.” She added, “When the doctors have wanted to interview someone, I have had them use a school grading system—A to F—so that there would be no other notations on the page.”

Facebook. Even though a growing number of employers are searching Facebook, it’s best to avoid it. “The trouble is, you might find out about issues like ethnicity and religion that you wouldn’t have known if you hadn’t looked,” said Mr. Wade. “Can that be used against you? Of course it can.”

Other possible Facebook pitfalls include confusing a potential hire with another person who has a similar name and not being able to assess whether or not posted information on someone’s profile is legitimate or part of a prank.

Background checks. Once again, consistency is key. Selective spot checks are not acceptable; what’s necessary for one candidate is necessary for all candidates. Moreover, you need to make sure that you get informed consent first, Mr. Wade said. “If you try and conduct a criminal background check without consent, that’s problematic.”

If something is uncovered during a background check, that in and of itself can’t be the determining factor for not hiring a person, he said. “You have to consider the nature of the offense, how long it has been since the offense was committed, and whether the offense is in any way related to the nature of the job.” For instance, if you’re looking to hire someone who will be handling accounts, was a financial crime committed? Or, if you want to hire someone who will be handling medications, was the crime drug related?

One note of caution: Seven states now prohibit running credit checks as a standard practice. Under these laws, job candidates must fall into specific categories in order for credit checks to be legal.

Resumes. Ms. Baker never recommends that applicants attach their picture with their resume. “I don’t want to know what you look like. That just opens the door to, ‘I didn’t get the job because they’re prejudiced.’” Similarly, she also recommends that people not include any information that touches on one or more of the protected classes, such as their age or their marital status (see “Topics to Avoid” above). “The focus is always, do they meet the specific criteria for the job? Anything else is irrelevant.”

As she noted, “A lawsuit does not have to be valid to be filed, and it’s going to cost you.”