Asked and Answered . . .

Jennifer Lord on finding balance when hiring employees

By Steve Thorpe
Legal News

Reports of the 1996 arrest, indictment and subsequent dropping of charges against new Detroit Lions head coach Matt Patricia for an alleged sexual assault have put the team in an uncomfortable spotlight. Such scenarios can represent a dangerous minefield for employers. Jennifer Lord is a partner with Pitt McGehee Palmers & Rivers in Royal Oak. Her practice specializes in race, sex, gender, disability, age, whistleblower, breach of contract, class actions and Family and Medical Leave Act (FMLA) claims. She also has extensive experience in severance negotiations. Lord has fully litigated claims in federal court, state court and arbitration. She also worked as a legislative assistant to a member of the U.S. House of Representatives. In that capacity, she helped draft legislation.

Thorpe: Employers and potential employers to face a dilemma. They’re asked to balance the rights and privacy of a single employee or applicant with safety in the workplace. How do they find balance?

Employers need to balance competing interests when making hiring decisions. The primary responsibility is to ensure a safe and productive workplace. If employers don’t exercise care when hiring, they can face tremendous liability if the new employee harasses or abuses someone in the workforce. Using the Matt Patricia hire as an example, if Patricia went on to sexually harass a member of the Lions staff, and the team knew or should have known about potential past misconduct, the staff member would have a solid sexual harassment case. That being said, employers also have to be sensitive to the privacy rights of applicants. Simply because a company makes a new hire doesn’t mean it has the right to an intrusive inspection of the new employee’s personal life.

There is also a fairness issue here. Just because someone made a mistake in the past or had an unverified allegation made against them, that shouldn’t prevent that person from working and being a productive member of society. It’s a complicated problem. At a minimum, most employers should get an applicant’s consent and then conduct a background check. It should also check the applicant’s public social media records. For unique positions, such as Patricia’s, I think that it is wise to have a conversation pre-hire, where the employer asks an open-ended question such as “is there anything else that we should know before we make our final decision.”

Thorpe: What are some of the biggest mistakes employers make when grappling with the issue? How do liability questions figure into it?

Employers make mistakes in the hiring process either by asking too much or too little of an applicant. An easy example of asking too much pre-hire is demanding to know a candidate’s age or asking if they have a disability. These questions are unlawful because they allow employers to screen out applicants based on bias. Once an applicant accepts a position, an employer certainly has a right to know if the employee is going to need an accommodation to perform the job. But that analysis has no place in the pre-hire phase. Employers risk liability under federal and state anti-discrimination laws when they ask too much.

The same happens by asking too little. Let’s say an applicant has felony DUI convictions and is being considered for a job that requires driving. If that employee gets drunk and hurts someone on the road, the employer could be on the hook for those injuries. The balance is to ask just enough. And to make sure that pre-hire questions are directly connected to the job for which the applicant is being considered.

Thorpe: “Ban the Box” efforts have tried to eliminate questions about criminal backgrounds from employment forms. But these don’t address situations where there was no conviction, correct?

Asking about arrests and convictions is tricky. Because African-Americans are arrested and convicted in hugely disproportionate numbers, using these records as a carte blanche disqualifier can be a tool to discriminate. The Equal Employment Opportunity Commission recognizes this and has issued guidance recommending that employers do not ask about arrest records. The State of Michigan has gone a little further, making questions about misdemeanor arrests a violation of the Elliot-Larsen Civil Rights Act.

Felonies are a different story. That question is always permitted. In some cases, a felony conviction should be a disqualifier. However, we need to recognize that just because someone has a felony conviction doesn’t mean they haven’t fully paid their debt. We don’t want a felony conviction to turn into a life sentence; where the person can never work again.

Thorpe: Democrats have criticized proposals to prohibit local governments from regulating job interview questions as an attack on local control and argued it might perpetuate pay gaps among women and minorities. Agree?

I can understand why a potential employer would want to know how much money an applicant is making during the application process. But asking about prior salary perpetuates pay gaps for women and minorities. There is no dispute that women and minorities make less than their male counterparts. An employer can “justify” paying a woman or a minority less for a new job because that person was probably being underpaid in their prior position. I think employers should set the pay rate for a job and stick with the pre-determined rate. If that employer loses a few applicants along the way, I believe that’s a fair exchange for equalizing pay rates for women and minorities.

Thorpe: How does our traditional assumption of innocence fit into the current tense “Me Too” moment? Are those accused of sexual offenses more likely to be assumed guilty? How does that play out in the workplace?

The “Me Too” movement has brought many important issues to our collective conscience. One of which is the importance of dialogue. We need to be talking about the impact of sexual harassment, racial harassment, and other forms of discrimination in the workplace and in society.

As part of this dialogue, we also need to safeguard the presumption of innocence. When an allegation is made, a robust and real investigation needs to occur. When discrimination is found, the harasser needs to face real consequences. For way too long, many people believed that systematic discrimination was in the past. It’s not. Whether it’s based on sex, race, age, or disability. This is bigger than an employer worrying about a lawsuit. Discrimination in any form is a cancer … and not just in the workplace.

Thorpe: What changes in current laws on the issue would you like to see?

I don’t know that changing the law would make these issues any easier to sort out. Employers should ensure that their hiring professionals are properly trained so that they can avoid the pitfalls associated with asking too much or too little.

Applicants should trust their instincts. If a potential employer is asking too many personal questions, and the applicant is passed over, I recommend the applicant speak with an attorney.

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