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Hiring and firing risk factor: careless words

Today’s administrators need to be aware of the casual – albeit well meant – words that are bringing on claims of discrimination.

Legal risks of both hiring and firing include careless words, says employment law attorney Donald W. Benson, a partner with Hall Booth Smith in Atlanta.

The friendly hiring remark

The dangers start with the interview, where a wrong comment can generate a claim no employer ever expects, says Benson.

Everybody knows not to ask the obvious questions of “are you married?” or “do you have children?” or “are you planning to have a family in the future?”

Yet many an interviewer brings up a discriminatory topic obliquely and unwittingly in an effort to build rapport with a candidate, never thinking about the danger.

Remarks such as “we have a young and vital work force” or “it’s a tough market for people like us with a lot of experience” can easily be construed to mean the firm is discriminating against older applicants.

Or suppose the firm has a good maternity policy or provides child care in an effort to recruit female attorneys. It’s good business to say “we have a generous maternity leave policy that offers more than the law requires.” But it’s risky business to introduce it in terms of “if you have children, you’ll appreciate this” or “what are your family plans for the next five years?” or “I have children. Do you?”

If that candidate doesn’t get the job, the suspicion arises that it’s because of discrimination due to age or pregnancy or whatever was mentioned – however casually – during the interview.

Retaliation for jobs past

Comments suggesting retaliation also creep into interviews, Benson says, all the more often because many employers don’t realize retaliation can be a hiring issue. An applicant can claim that not getting hired for one job is retaliation for exercising some legal right at another job.

Never ask if a candidate has ever brought an EEOC or OSHA complaint and never ask about union membership or about taking FMLA leave or about wage garnishments for child support.

In some states, Worker’s Compensation claims fall into that same category, he notes. It’s okay to ask if there is a claim pending, but the office can ask that “only after the offer of employment.”

Let’s talk about that disability

Careless words can also bring on claims of ADA violations.

The ADA says an employer can’t ask for information about a disability until after making a conditional offer of employment. Thus, an interview should never include talk about whether somebody has a disability or what type of accommodation is necessary.

Wait until after the offer is made. Then if it turns out the accommodation needed is excessively expensive or will affect the office negatively, the offer can be retracted without violating the law. But talk about it earlier, and it looks like the firm discriminated against the applicant because of the disability.

What if during the interview the applicant volunteers that “I have such-and-such disability”? It’s permissible to talk about it – but limit the conversation to describing the duties of the job and discussing how the individual can perform those duties with or without an accommodation.

Just too much information

A pure interview is limited to things that are job related and that will indicate what the candidate’s job qualifications are.

Many interviewers fail there and quite innocently, Benson says. They want to establish rapport with candidates and so come up with let’s-make-a-connection queries such as “tell me about yourself.”

That’s an invitation for information “an employer would rather not know about,” perhaps “I’ve had a bad life. But I just got out of rehab and I’ve kicked my dope addiction.” And now the firm is on notice that the individual has an ADA-covered disability. Fail to hire that person, and a discrimination claim could follow.

When a candidate self discloses information the firm is better off not knowing about, the best response is along the lines of “Congratulations on that. And I want to emphasize that we don’t discriminate on the basis of any disability or addiction.” Then quickly change the subject to something appropriate for the interview.

Keep the conversation solely on what the job involves and what the new hire must be able to do and limit the personal questions to “tell me what you have in your work history that would make you qualified for this job.”

It may not be illegal to ask about a personal issue, but doing so “can create suspicion” that the firm is discriminating against the candidate because of it.

He gives the example of interviewing a candidate who is a member of a religious group that doesn’t drink alcohol yet the job requires wining and dining clients.

Don’t ask about the drinking lest there be a claim of discrimination based on religious conviction. Ask instead about the job qualifications, perhaps “what responsibilities have you had in other jobs for developing personal connections?” That produces the answer needed “without giving the impression of religious discrimination.”

The nebulous firing remark

Exercise equal care in the firing conversation.

One especially serious point, Benson says, is how the administrator phrases the reason for the firing. That reason has to be well documented, accurate, and complete. It also has to be the reason the firm sticks with. There can be no changing it later on.

Suppose the firm is terminating Staffer A because she’s been late repeatedly and also because there’s good evidence she stole money. The administrator wants to make the termination conversation easy for both sides and so cites only the tardiness issue, not the theft.

Staffer A is now free to come back and claim, say, age discrimination because the younger employees who were repeatedly late were kept on board.

And it’s too late to throw in the theft as a supporting reason for the termination, he says. Changing the story at that point raises suspicion that the firm is fabricating the theft excuse cover up the age discrimination.

Decide ahead of time what the reasons are for the firing, make sure they are documented, and cite every one of them at the firing meeting.

Don’t sidestep the unpleasantries

Give the employee objective, business-based reasons for the termination.

Be respectful, but don’t try to save the employee’s feelings or avoid a confrontation with some wishy-washy reason such as “I’ve been told by the partners that I have to let you go. I don’t agree with it, but it’s not my decision.”

The staffer can only conclude “something is unfair, because my boss says I was doing okay.’”

Equally dangerous are vague and subjective statements such as “we’re letting you go because you’re not a team player.” If that employee is the only female in an all-male department, enter a claim of sex discrimination.

The same for “we’re letting you go because we’re changing to a more dynamic workforce.” The employee could take that to mean a younger workforce, and if so, here comes an age discrimination claim.

Similarly, a remark such as “you’ve always been a poor fit for this job” sounds like there’s a personal dislike for the individual, which just adds support to a claim that the firing is because of race or age or ADA leave or whatever.

Always give a valid and business-based reason so there’s no room for speculation that there’s a coverup.

But I have a good reason!

Also problematic with the firing conversation is how to respond when the employee cites a reason for the unacceptable behavior, Benson says.

There could be a seemingly valid excuse such as “I’ve been absent so much because Attorney Smith is constantly groping me and it’s made working here a nightmare.”

Or there could be a sort of counterclaim such as “I disagree with that. My supervisor has never liked me. What’s more, he’s been having sex with all the women in the group and he’s picking on me because I disapprove.”

Or there could be an assertion of differential treatment as in “So-and-So has done that repeatedly, and you never fired her.”

The best response is “I appreciate your providing me with this information, and I will look into it. But we respect the privacy of our employees and we will keep the investigation confidential. We won’t report back to you. And yes, you are still fired while we investigate.”

If it turns out the claim is correct, the firm might bring that person back. Or it might fire the other person. But keep the current conversation to “we are firing you and this is why.”

Here’s what we’ll tell folks

A final caution is statements about giving references. Whenever anyone is fired, explain the office’s policy on references so the employee knows what to expect.

That can make a difference in whether the office sees an employment law claim, Benson says.

If the policy is to give only verification of the position and the dates of employment with no information on whether somebody left voluntarily or was fired, say so.

Knowing that future employers won’t be told about the firing “can go a long way in alleviating that person’s concerns about the future.” And hopefully the former employee “won’t be so gung-ho about going after the office.”









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