Making Smart Hiring Decisions

January 21, 1998

When can you start work? In today's tight labor market, this may be the only question some contractors believe they can afford to ask a job applicant. When you consider the true costs of employee absenteeism, careless errors, and training, making "smart" hiring decisions becomes well worth the effort and expense.

Recently, AGC of Kentucky joined with other employer groups to encourage contractors and other employers to ask job applicants for their school records as part of the hiring process. For applicants without significant job experience, school records may be the best indicators of key worker characteristics like attendance, willingness to accept responsibility, and ability to learn new skills. As with many other types of hiring information, however, care must be used to avoid legal traps in the use of school records.

Under federal job discrimination laws, any required qualification for employment may be unlawful if it has an "adverse impact" on any group protected by these federal laws.

As an example, it is much more common for a white applicant to have a high school diploma than it is for a black applicant. Accordingly, your requirement that all job applicants have a high school diploma will disqualify more blacks than whites. This is what the law means by an "adverse impact."

Blacks, and other minorities, and women are examples of "protected groups" under federal discrimination laws. Accordingly, the high school diploma requirement will be unlawful unless the employer can prove that the diploma requirement is "job related" and a "business necessity." This means that having a high school diploma must accurately predict the likelihood that the applicant will be successful in performing the job. In addition, the employer may also have to show that it had no other means to predict the success of applicants.

If the job that the employer is seeking to fill is a position which requires accurate reading, writing, and spelling, such as a secretary, then a high school diploma might be lawful. An employer might need to show, however, that administering a reading, spelling, and arithmetic test would not serve its purposes just as well.

Every other criteria for employment is subject to the same "adverse impact" test. For this reason, any use of school records that might create an "adverse impact" on the "protected group" may be found to be unlawful. As an example, requiring applicants to have completed a "shop" or "woodworking" class in high school may have an adverse impact upon women since fewer high school girls take these traditionally male classes. The contractor would have to show that requiring an applicant to have taken a "shop" class is both "job related" and a "business necessity." If the contractor is seeking to fill a carpenter's position, a woodworking class might well be "job related." It might be difficult to show, however, that requiring applicants to demonstrate carpentry skills would not satisfy the contractors' "business necessity" as well as requiring applicants to have taken "woodworking" in high school. The same argument could be made for virtually every school course.

Some basic guidelines can help keep contractors out of legal trouble when using school records, or any other measure, to evaluate applicants. Some are:

Avoid Rigid Rules. An employment criteria is most likely to be challenged as unlawful if it automatically eliminates an applicant for consideration. If a high school diploma, or woodworking classes are considered among other factors, but the contractor will also consider other ways for the applicant to show that he/she has the required skills or knowledge, a legal challenge is unlikely.

Give Applicants An Opportunity To Explain.  A legal challenge is also made less likely if the contractor gives applicants an opportunity to explain any negative information on a school record for failure to achieve in school. For example, the black applicant may explain that his/her inter-city school did not offer "woodworking," but he/she obtained these skills through work experience or other training opportunities. If given an opportunity, an applicant might explain that a poor attendance record in high school was because of a chronic illness which is now no longer a problem.

Focus on Performance. The safest use of school records is a source of recorded facts.  Use of school records to learn an applicant's history of absenteeism or misbehavior is among the safest uses of school records since the employer is merely relying on the school records as a record of past events for which the applicant can blame no one but him or herself. Still, the applicant should be given an opportunity to explain rather than automatically be disqualified. 

The list of employment criteria that has been challenged as having an "adverse impact" on minorities, women, and other "protected groups" includes many common hiring considerations. For example, courts have challenged rules that applicants:

Black and arrest record;
Black and criminal conviction record;
Have specific weight lifting abilities;
Have minimum height or weight requirements;
Have maximum weight requirements;
Black and any history of garnishment or bad credit rating;
____________ requirements;
Language requirements.

This does not mean that a contractor may never inquire about any of these areas. It does mean that a contractor needs to be able to describe why it disqualifies applicants based on these criteria and that these criteria are necessary to obtain the type of employees it requires.