• Hiring managers should be trained on how to avoid discriminating against applicants.
• Notes or statements on an applicant’s race, color, sex (including sexual orientation and gender identity), religion, national origin, disability, age, pregnancy, genetic information, and union affiliation should be avoided.

For the untrained, the hiring process can quickly become a quagmire of potential legal issues.

Interviews

Individuals who interview job candidates have the potential to violate a myriad of discrimination laws. If a manager responsible for hiring doesn’t have proper training, the manager could easily invite a lawsuit for the company.

Avoiding discrimination

Any individual who has hiring responsibility should know to avoid discriminating against individuals on the basis of race, color, sex (including sexual orientation and gender identity), religion, national origin, disability, age (over 40), pregnancy, genetic information, and union affiliation.

In some state and local jurisdictions, individuals also can’t be discriminated against on the basis of marital status, political beliefs, military discharge status, arrest and conviction records, and the use of lawful products such as cigarettes (or even marijuana in some states that have legalized its use).

Potential pitfalls

Once a candidate is at the interview, managers should be aware of the potential for blunders during small talk that often occurs before and after the interview. Just because the interview hasn’t officially begun doesn’t mean the laws against asking discriminatory questions don’t apply.

For example, a female candidate mentioned the need to find a sitter to attend the interview, and when the person calls to find out why there was no job offer, an untrained supervisor might say, “We just thought that with all your responsibilities at home, it might be difficult for you to travel as much as this job requires.” That statement alone could be grounds for a lawsuit. In addition to knowing what not to say, a supervisor or manager should know how to get the best results from interviews.

Hiring managers should realize that the process of avoiding discrimination does not extend only to the interview itself. It starts when the interviewee is selected and extends, essentially, for at least a year after the interviewee leaves (that’s the typical statute of limitations for filing a discrimination claim based on failure to hire). This could be an issue if a candidate who was interviewed but not chosen calls to find out why, questions the hiring process, and so on. Should a need arise to defend a hiring decision, what is said to the applicant is critical.

Interviewers must also be aware that, when taking notes during an interview, it is best not to write down anything that could be construed as discriminatory. Making a notation as to someone’s race may be used as evidence of discrimination if that person isn’t chosen for the job. In fact, steer clear of making notes about any personal characteristics (“tall Black man,” “stutterer,” “older female”). These can easily be used as evidence of discrimination if that individual is not hired or considered for the position.