This article was reviewed in August 2021 and is up-to-date.
The stock market has reached all-time highs and the economy in general continues to be strong. In this scenario, many public sector employers are hiring. Although this is certainly welcome news, the hiring process does, however, carry legal risks.
The following are six areas of the hiring process in the public sector that deserve particular attention from a legal perspective. This is not an exhaustive list of such areas, or a complete list of considerations, but it provides a general framework for what to trouble-shoot before hiring begins in earnest.
1. Utilize Accurate Job Descriptions: At the very outset of the hiring process, it is critical to develop accurate and sufficiently detailed job descriptions. These will prove important not only for hiring, but also for legal issues that may arise later during the course of the employment relationship. An accurate job description will help the agency demonstrate that questions on job applications and during interviews are legitimate and non-discriminatory, and help those in the hiring process focus on eliciting those facts that are job-related. Also, in the context of disability discrimination laws, in both the hiring process and during employment, an agency’s identification of the “essential functions of the job” will be critical. Under both federal and state law, a court will treat the job description prepared by the employer prior to advertising or interviewing for the job as evidence of what constitute essential functions.
Detail in the job description can also be very important, because vague or overly general job descriptions may not provide proper guidance either to applicants deciding whether to seek the job, or to agency personnel making the hiring decisions. Misunderstandings about the nature of the job can produce charges of discrimination or of failure to accommodate. At a minimum, a job description should contain: (a) justifiable job-related educational requirements, (b) necessary vocational skills, (c) required work experience, (d) examples of duties, (e) unusual physical requirements, (f) work hours, and (g) compensation. Where possible, job requirements should be validated by experts using professionally accepted validation methods.
2. Establish a Uniform Screening Process for Applications: The next phase to consider is the initial “screening” of applications for those who are not qualified or not competitive in light of the quality and experience of other applicants. As a general matter, an employer’s initial “screening” must be conducted in a neutral manner that does not result in an improper impact with regard to a protected characteristic, such as race, gender, religion, and age 40 and over. Accordingly, the agency should establish a set of job-related screening criteria which do not result in exclusion of individuals who are qualified and competitive for the job. The agency should also have a process in place to make a separate review of the fairness and appropriateness of screening criteria, to make sure the screening guidelines are followed uniformly, and to confirm that decisions were not influenced by unlawful considerations.
3. Focus Interviews on Job-Related Questions, and Avoid Improper Questions: Like other aspects of the hiring process, interviews must be conducted in a non-discriminatory manner. Questions should focus on qualifications for the job in question, and not pertain to protected characteristics. Some unlawful questions are easy to spot, such as asking about an applicant’s race, age, religion, or other protected characteristics. But according to the Department of Fair Employment and Housing (“DFEH”), the list also encompasses some questions that bear indirectly on these matters, such as questions about the date of completion of school, religious days the applicant observes, or the applicant’s birthplace. There are, however, ways questions can be phrased to request information the employer legitimately needs without creating an impression of bias. (For example, it would be appropriate to ask which languages an applicant speaks, but only if relevant to the job at issue.)
It is vital that agencies ensure that those employees conducting interviews have received training in what constitute protected classifications, and what questions are prohibited. Also, interviewers should be thoroughly familiar with the job description and the nature of the job in question.
4. Background Investigations, Including Reference Checks: Background investigations pose unique legal challenges. To fill some positions such as police officer, a public agency is actually required by law to conduct such an investigation. However, applicants have state and federal constitutional privacy rights that bear on what information an agency can seek and in what manner the information may be sought. Also, an agency must be careful to abide by the same anti-discrimination standards in conducting the background investigation that are required in all other aspects of the hiring process. Further, there are federal and state statutes that may govern how the investigation is conducted.
An important step in the background investigation process is obtaining a signed waiver and authorization from each selected applicant. The waiver/authorization should inform the applicant of the types of information the agency will request from the applicant’s current or former employers. It should also require the applicant to release the agency and current or former employers from liability arising from the background investigation. The document can also require the applicant to authorize access to, and/or to require the applicant to obtain a copy of, the applicant’s personnel file from prior employers. It may be appropriate for the investigator actually to meet with the applicant to explain the process and make sure the applicant fully understands what types of information the agency will seek.
5. Keep Pre-Offer and Post-Offer Separate: Generally, under both federal and state law, employers cannot ask questions about disabilities or require medical examinations prior to making a conditional offer of employment. The EEOC has described that a “conditional offer of employment” is a real job offer that is made after the employer has evaluated all relevant and lawful non-medical information which could reasonably have been obtained and analyzed prior to making the offer. The offer is conditioned upon acceptable medical information, such as passing a job-related medical examination that is directly related to job performance and business necessity. Typically, for a conditional job offer to be “real,” an employer cannot conduct medical examinations or otherwise elicit medical information until after the employer has evaluated all relevant non-medical information, and offered employment subject only to the medical exam.
Agencies should audit their practices to ensure they comply with these requirements. In the case of peace officers, agencies can sometimes make conditional offers before some types of non-medical evidence (i.e., background checks) has been received, if the evidence cannot reasonably have been collected earlier. This, however, is an exception to the general rule. In addition, the agency should be able to prove that the medical inquiries it makes post-offer, including psychological evaluations, which are often conducted for public safety positions, are in fact necessary for determining whether the applicant can perform the job. (There are also considerations regarding drug tests and the limits applicable law places on them.)
6. Rejection of Applicants Based on Results of Medical Examination: If an agency rejects an applicant based on the results of a medical examination, it must be prepared to present evidence that the decision comports with state and federal laws prohibiting discrimination on the basis of disability. Considerations include whether a reasonable accommodation was available that would not impose an undue hardship, the extent to which the applicant’s holding the position would pose a direct threat to health or safety of the applicant or others that could not be eliminated by reasonable accommodation, and others. How an agency plans to respond to charges of disability discrimination can be addressed largely in advance, by thoroughly vetting the criteria and decision making process to be used.
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Although the areas of federal and state law involved can be complex, auditing and trouble-shooting the hiring process at the outset, and making sure that the best possible procedures are in place before they begin to operate, can help avoid legal problems later.