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Avoiding discrimination allegations during the hiring process

Your business is important to you, and you likely want your employees to represent you well. Additionally, you certainly want your workers to get along and share a common workplace philosophy. Finally, when you consider candidates for open positions in your company, you probably want someone who is not going to place you or your brand at risk.

With these things in mind, you may have created a job application unique to your business, as California law allows you to do. However, by doing so, you open yourself to the possibility of violating regulations set forth by the federal Equal Employment Opportunity Commission.

Don't go there!

Of course, your applicant's work experience is of primary concern. You want to know if the candidate has the skills -- or the ability to obtain the skills -- to perform the job well. With that in mind, your application and interview questions can center on this area, assessing the qualifications of the applicant. This typically includes questions about the applicant's educational background and work history. For example, you may ask any of the following:

  • What educational degrees have you earned?
  • What professional certificates or licenses do you hold?
  • Where did you attend school?
  • What were your duties at your previous job?
  • How long and how long ago did you work there?
  • Can you describe any special projects on which you worked at your previous job?

Limiting your inquiries to work experience may not answer your burning questions about the applicant's suitability for work in your company. You may want to know about the trustworthiness of your candidate and any past legal troubles the applicant may have. You are within your rights to inquire about the applicant's criminal history, but only as it relates to convictions. You may also perform a criminal background check, and it may be recommended, depending on the kind of work your company does.

However, the law forbids you to ask questions that suggest discrimination, such as:

  • Do you have children?
  • Are you pregnant, or do you plan on getting pregnant?
  • What is your race or nationality?
  • What is your gender?
  • What is your marital status?

The law strictly protects some areas of a person's life. For example, you cannot ask an applicant about any disabilities beyond whether the person is physically and mentally able to perform the work in question. This includes questions about past drug or alcohol use. Specific questions, such as whether the person can lift 50 pounds or what accommodations the applicant requires, will help you avoid violating the Americans with Disabilities Act.

Business owners often find it advantageous to seek professional advice on formulating a job application within the boundaries of the many laws that protect workers from discrimination.

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