Stay Out of Hot Water: Hiring Advice to Avoid Discrimination Lawsuits

Word job ads carefully to avoid using terms that could be interpreted as discriminatory.

Posted by Joe Gerard in Discrimination, Human Resources on May 12th, 2011

In some countries it’s perfectly common for a job ad to read, “attractive female aged 20-30 for front office position,” but not in the US or Canada, where this would be seen as hiring discrimination. That kind of wording can get an employer into a whole lot of trouble here.

While the discriminatory wording in the example above is obvious, there are many more subtle ways that wording in ads, applications and interviews can open up an employer to potential legal trouble. You may be surprised to find that specifying the number of years of experience required for a job could get you into hot water, or that mentioning a position that would be ideal for “recent graduates” can be seen as age discrimination.

Choose Wording Carefully

We asked Ottawa employment lawyer Stephen Bird to provide some tips on avoiding charges of discrimination in the hiring process. A poorly written ad or badly conducted interview can serve as evidence of discrimination against an applicant you do not hire. Therefore, says Bird, it’s important to choose your words very carefully.

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Your ads should reflect no bias against people on the basis of their race, colour, religion, gender, or national origin. And ads may not discriminate against people with disabilities.

Ask Only What You Need to Know

“Understand the nature of the job you’re hiring for and what the real qualifications of the job are, and don’t ask for any more information than you need,” says Bird. This includes the advertisement for the job, the interview and the hiring documentation.

It’s obvious that you shouldn’t ask discriminatory questions, such as a person’s age, says Bird, but you also have to be careful of what sometimes seemingly innocent questions can convey. Asking how many days of sick leave an applicant used, on average, in their previous employment, potentially discloses disability, he says. Asking whether someone has ever had a Workers’ Compensation injury might be seen to disclose disability. If you ask a candidate if she’s thinking of having children, this can be seen as discrimination on the basis of sex.

“All of these are discriminatory questions and if the individual doesn’t get the job because they are not a good candidate, your defense is shot because your questions on the application and in the interview were discriminatory,” he says.

Percieved Disability

If physical capability is a requirement of the job, Bird advises making a conditional offer, using the terminology: subject to you being able to demonstrate physical capability. “That’s perfectly legitimate,” he says. “But if I ask you if you think you’re capable of lifting 50 pounds because the job requires that, and you say that you’re not sure because you have a bad back, and you don’t get the job, I’m discriminating against you based on perceived disability. You don’t have to have a disability, but if I think you have one, that’s enough for me to be in trouble.”

Ultimately, it comes down to sensitivity, says Bird. He recommends sensitivity training for anyone who is doing the hiring in your company. Knowing what you should and should not ask or say can keep you and your company out of hot water.

Joe Gerard
Joe Gerard

CEO, i-Sight

Spend my days showing off the i-Sight investigative case management software and finding ways to help clients improve their investigations. Usually working with corporate security, HR & employee relations, compliance and legal teams.

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