How Conversational Interviews Breed Bias & Discrimination with Robert Hudock of Hudock Employment Law Group

Update: 2022-10-05

Description

Every interview that happens in your company needs to have a purpose.

There is a specific purpose for the phone screen, which is positioning & quality of the individual.

The onsite interview’s purpose, does this person align with our company values and finally, the skills interview’s purpose is to determine if the person has the capacity to thrive in the role.

Too often the directive is given to “have a conversation to find out if you would like to work with this person”. And it is in this non-structured format that bias and discrimination fester because the interviewers don’t understand the interview’s purpose.

Guest Bio:

Robert Hudock founded Hudock Employment Law Group in 2015 to deliver tailored legal services to California companies that thrive in vibrant, creative work environments. His clients are often companies looking at new markets and competitive opportunities, that want to recruit the best talent available while avoiding distracting workplace issues or lawsuits.

Robert is also a competitive triathlete, which requires careful planning, attention to detail, and dedication. He uses those characteristics in his professional life for his client's benefit.

TODAY WE DISCUSS:

Employment law issues in the hiring process you may not know–but should.

Challenge?

The 3 most common recruiting and hiring functions in which employment-related issues can arise are: (1) job posting/advertisement, (2) interviewing, and (3) assessing fitness for a position (e.g., any criminal history, drug screening, physical capabilities, psychological health).

California’s anti-discrimination laws explicitly apply not only to employees and termination of employment, but also to applicants and “refusing to hire” based on a characteristic protected under the applicable antidiscrimination laws (e.g., age, disability, gender, race, etc.).

Why is this important to the company?

Consider a scenario where your company spends significant time and resources on employment law compliance and protecting itself from lawsuits, only to be subject to an employment-related claim that could have been prevented but for a gap in general knowledge and available preventative strategies relating to recruiting and hiring. Today we’re going to introduce you to the topic and some possible preventive measures.

How do we solve the problem?

Interviewing: any non-job-related inquiry that "expresses, directly or indirectly, any limitation, specification, or discrimination as to” any protected characteristic is prohibited
- Common implicated categories: age, disability, national origin
- Some examples may surprise you - you may have been asked such questions and you answered without a second thought, the questions are relatively common, or are common topics of conversation:

SUBJECT

ACCEPTABLE

UNACCEPTABLE

Age

Virtually nothing - but allowed when law requires it

Birth date

Date of attendance or completion of school

Any question, the answer to which may have information indirectly revealing or suggesting that applicant is 40 or over (e.g., “how old are your children?”)

National Origin

Inquiries re verification of legal right to work in US

Where born (applicant or applicant’s relatives)

Where applicant grew up

Applicant’s nationality or nationalities (e.g., Polish, Iraqi, Mexican)

Marital Status/Family

Virtually nothing

Whether applicant is married

Whether applicant has children; or number or ages of children

Religion

Statements re regular days, hours, or shifts of the position

Applicant’s availability to work on specific days or during specific hours (could reveal religion if unique religious days or times are observed)

Can be anything relating to religious creed (all aspects of religious belief, observance, and practice, including religious dress and grooming practices)

Identify and define, BEFORE interviewing, any legal justification for discriminating with respect to a protected category
- As with job postings, antidiscrimination law does not categorically preclude any and all inquiries into matters relating to protected categories, or lawful discrimination. For example:

AGE: When a law specifically requires a certain age for job, or requires keeping records re employees’ ages or related information

RELIGION: When an inquiry directly or indirectly relates to any religious belief or practice does not have any “exclusionary effect”

DISABILITY: An inquiry re physical capabilities legitimately related to ability to perform an essential job function

Proper education and training of all interviewers

How to respond when applicant volunteers information

Let’s say an interviewer and interviewee are discussing where the interviewee obtained his/her undergraduate degree

The interviewee, making friendly conversation, says tongue-in-cheek: “...that’s hard to remember for an old guy like me, but I’ll never forget these seemingly endless stairs going up to where I met with my “Campus Christians” group. It was like running a marathon once a month because of my knee injury” → just that short aside references three protected categories (age, religion, and disability)

In these types of circumstances, the interviewer should (1) steer the discussion away from references to any protected category, and (2) and at some point identify the company’s commitment to equal opportunity
- E.g., “Interesting. That story makes me think about how this company supports equal opportunity and has a strong policy against discrimination.” Let’s move on to your work experience.”