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Job Qualifications Can Contain Legal Traps

By Joel Handelsman | June 29, 2012

Finding and hiring the right person is important to every small business owner who needs the help that an employee can provide.  Those who decide to hire generally start by carefully defining the work to be performed, and then they determine exactly what set of skills and abilities are required to accomplish that work.

But be careful; these preliminary steps taken to establish which credentials a qualified applicant should possess can provide a trap for the unwary.  The very process of deciding on which skills an employee needs can create legal problems for those who don't realize they may be unwittingly discriminating against certain types of prospective employees.

How can actions you take prior to even placing an ad for help subject you to liability?  The most common way is to impose requirements that aren't really required by the nature and needs of your business.  It's quite easy to confuse formal credentials with the underlying skills that the credentials seek to demonstrate.  Let's look at two areas that might get you into trouble: educational requirements and language skills.

Educational Requirements

Many employers require at least a high school degree or an equivalency certificate for most jobs they fill.  Some jobs require more advanced responsibilities and, therefore, may require more advanced education.  When you determine job qualifications, make sure that you focus on the applicant's ability, not just the degree.   High school graduation requirements for applicants are discriminatory when applied to positions that don't require that level of education.  For example, a person without a high school diploma may still read and do math well enough to perform a particular job.  Not only would requiring a high school diploma create the possibility of litigation, but it would also limit the pool of applicants from which to select the best candidate.

For employers of 15 or more. There are some lawyers and consultants in the field of employment discrimination who advise dropping all degree requirements, relevant or not, because they invite discrimination claims.  However, the Equal Employment Opportunity Commission says only that employers can't set educational requirements so high that they tend to restrict certain protected groups of people from getting hired or promoted.  Again, the safe road to take is to focus on skills, not on possession of a piece of paper.  Be prepared to justify why any degree you require is itself a necessity to job performance.

Language Skills

As with all skills and abilities, language fluency must be related to job performance in order to be required.  Note that this doesn't mean that it is just desirable to have proficiency in the language; it must be an important part of doing the job.  If a person can perform the job without having the language skills you demand, then your language requirement is discriminatory.

A policy of refusing to hire applicants with "poor grammar" as computer programmers was determined by one court to be unlawful bias.  The employer was unable to show a business reason for requiring programmers to have good grammar skills.  In contrast, a hotel's failure to promote a room attendant to front office cashier was justified because greater English proficiency was necessary for successful job performance.

For employers of 15 or more. If you require language fluency, you must be able to prove that it is an important and necessary part of the job.  Federal law requires that you not discriminate against any protected groups, including groups whose ethnicity, national origin, or race may prevent them from speaking English.

In one case, an employer required all prospective welders to pass a written examination, in English, as a condition of employment.  A court ruled that the test was biased because members of other ethnic groups, such as Hispanics, had difficulty passing the test even though they were otherwise qualified welders.  There was no direct relationship between English language skills and the work that was to be performed.

What constitutes business necessity?  A movie theater operator required that all of its employees who had contact with the public speak both English and Spanish.  African-American applicants alleged that the bilingual requirement had an adverse impact on African-American applicants and employees.  This employer was, however, able to defend its bilingual requirement as a business necessity since it was located in a community that was primarily Hispanic and the majority of its customers spoke only Spanish.

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