Curiosity HR Question

[billbenson]

I'm not hiring, so this is hypothetical.

I worked for a company where the secretary told everybody (except me) what everybody was earning. Obviously that's a no no. Can create a lot of infighting.

Let's take it a step further. Suppose she was doing drugs or drinking on the job. Maybe she stole some stuff but was just fired, no criminal record. Etc.

__________________________________________________ __________________________________________________ ________________________

So, lets say I'm hiring a job applicant and I know some or all of the above about the person. Can I use that knowledge to disqualify the applicant?

[Freelancier]

You cannot discriminate based on age, gender, religion, race, and in some states and countries, sexual orientation.

Nothing in there about discriminating against a loud-mouthed problem worker.

[LGCG]

I'm a little confused by the phrasing of the question- So there's a job applicant who you know does drugs, has problems with alcohol etc. or are you saying there's a job applicant who you know is a loud mouth, shares personal info about other employees etc?

[Harold Mansfield]

I'm not hiring, so this is hypothetical.

I worked for a company where the secretary told everybody (except me) what everybody was earning. Obviously that's a no no. Can create a lot of infighting.

Let's take it a step further. Suppose she was doing drugs or drinking on the job. Maybe she stole some stuff but was just fired, no criminal record. Etc.

__________________________________________________ __________________________________________________ ________________________

So, lets say I'm hiring a job applicant and I know some or all of the above about the person. Can I use that knowledge to disqualify the applicant?

As long as you aren't discriminating against her for the above reasons, you can decide not to hire anyone you want.
You can't unlearn what you know, and there is no law against (or is there?) just not liking someone. I certainly wouldn't have ever hired a bartender or waitress with whom I've worked before and knew they were stealing.

There are no rules that say you HAVE to hire anyone, unless you are going for Government contracts or funding and have absolutely no diversity...then you may want to mix it up. Most laws just say that you can't discriminate against people, but even that is almost impossible to prove without a documented pattern, witnesses, or some kind of actual proof like a video tape of the person saying "I won't hire women (or whatever)".

It's your company, you hire who you please.

[Wozcreative]

If you hear, or know they are not responsible, trustworthy, then you don't have to hire them. Same thing if you were to rent out to a tenant. Or hire a babysitter. You are allowed to say no if this person cannot be trusted to do their job properly or is unfit.

[Steve B]

Freelancier hit it on the nose. Many states follow the concept that you can hire or fire for a good reason, a bad reason, or no reason... as long as it is not an illegal reason. You can literally flip a coin and decide who to hire or fire if you want - until it becomes specifically illegal to do so.

[billbenson]

Ok, then lets take it to a more extreme example. You have a biker bar. You know an applicant is gay. You don't want a gay biker bar. Can you decline him / her the job?

[Fulcrum]

Ok, then lets take it to a more extreme example. You have a biker bar. You know an applicant is gay. You don't want a gay biker bar. Can you decline him / her the job?

Simply put - no.

However, I don't believe it is out of line to ask that all employees keep their sexuality at home rather than express it at work.

As to drug and alcohol use, I now that here in Ontario I am not allowed (by law) to ask a potential employee if they smoke, drink excessively or use illegal drugs. For some reason, declining this person because of an addiction infringes upon their "right" to have a job due to a possible mental illness.

[Freelancier]

Can you decline him / her the job?

Why is that "more extreme"? As I wrote, in some states and countries, sexual orientation is an illegal reason to not hire someone. BUT, in some states and in some countries, it's NOT illegal to decline to hire someone because of their sexual orientation. Know the laws where you are so that you don't get into trouble.

[billbenson]

Well, the presumption of this thread is you know the employee candidate and wouldn't want to hire them from past experience.

In this case, you aren't necessarily prejudiced. You just want an employee that fits the company mold and helps produce revenue for the company. Kind of like Hooter doesn't want 70 y/o fat women for hostesses?

[Paul]

I don't know of any law (yet) that you have to disclose why you didn't hire somebody.

[Steve B]

Paul - that's not the way to look at it. You WILL have to disclose your reason to the EEOC or any court if a lawsuit is filed. Your reason must be a "legal" reason and you should be able to make a strong case to defend your reason (i.e. interview notes).

In addition to what I stated before - your decision making must also not have a disparate impact on any protected group. This could be some requirement you put in place that is not a bona fide job requirement, then has an inordinate effect on a protected class. In this case, your motivation may not have been to illegally discriminate, but the result could still get you in trouble. For instance, requiring (for no particular reason) that all employees be 6 feet tall. At first pass, this might seem like a legal reason since you don't know of any specific law protecting people under six feet tall. However, handicapped and even certain minority groups will be adversely affected by this requirement.

[Business Attorney]

Well, the presumption of this thread is you know the employee candidate and wouldn't want to hire them from past experience.

In this case, you aren't necessarily prejudiced. You just want an employee that fits the company mold and helps produce revenue for the company. Kind of like Hooter doesn't want 70 y/o fat women for hostesses?

"Fitting the company mold" is NOT a legitimate reason to discriminate on the basis of sex, race, religion, color, or national origin; against people over 40; and against people with physical or mental handicaps. There are some legitimate job qualifications where there are very limited exceptions; a Christian church would not have to hire a rabbi as a minister. However, a store looking for a "hip" young image could not refuse to hire a qualified 41 year old based on his age. If the 41 year old generates one third of the sales as his twentysomething colleagues, you can terminate him for performance issues, but you cannot automatically disqualify all applicants over 40.

[Steve B]

Exactly - That kind of phrase "fitting the company mold" would certainly raise the suspicion of anyone investigating your situation. It could easily be considered code for an illegal discrimination - whether intentional or not.

[billbenson]

Then how does Hooters get away with only cute young girls for their waitresses?

[Freelancier]

Then how does Hooters get away with only cute young girls for their waitresses?

Google "hooters discrimination lawsuit".

People sue them, after a long while, they settle and life goes on the same as before. For them, it's considered a "cost of doing business".

[billbenson]

Seems like that is taking things to the extreme. Who wants to go to a Mexican restaurant and not have the Mexican ambiance i.e. Latino servers... I'm sure you are right Freelancier, I just don't see where someone could claim discrimination in either the Hooters or the ethnic restaurant example.

[Paul]

Paul - that's not the way to look at it. You WILL have to disclose your reason to the EEOC or any court if a lawsuit is filed. Your reason must be a "legal" reason and you should be able to make a strong case to defend your reason (i.e. interview notes).

In addition to what I stated before - your decision making must also not have a disparate impact on any protected group. This could be some requirement you put in place that is not a bona fide job requirement, then has an inordinate effect on a protected class. In this case, your motivation may not have been to illegally discriminate, but the result could still get you in trouble. For instance, requiring (for no particular reason) that all employees be 6 feet tall. At first pass, this might seem like a legal reason since you don't know of any specific law protecting people under six feet tall. However, handicapped and even certain minority groups will be adversely affected by this requirement.

We're not talking about racial or any other kind of discrimination. We are simply talking about “not hiring somebody”. It is the person filing the suit that has to present evidence that it was based on some form of prejudice. I don’t believe you have to explain anything, they have to prove it. In the original example they would have to prove you’re biased against big mouths. I'm not sure that's a protected class.

It would be quite a mess if everyone who wasn't hired somewhere could file a suit. If you hired 1 out of 10 applicants you'd have 9 law suits. If that were the case and you did hire the big mouth then you'd have to defend yourself against the other applicants for that job.

[Steve B]

Actually Paul, the company has the burden of proof in this situation to prove their decision was not in violation of any particular law. EEOC and employment cases are different than typical cases. The claimant merely needs to make an allegation and check a box - then the company will have to prove to an investigator that their decision did not have an illegal motivation.

You are correct about "big mouths" not being a protected class. You are welcome to not hire for that reason (at least in any of the states I worked).

Everyone can file a lawsuit if they want to. Thankfully, it's very rare for a suit to be filed in a failure to hire situation. I was in human resourses for 18 years - I probably hired a couple thousand people and never once had a failure to hire lawsuit filed against any of my companies that I worked for. I was probably involved in about 20 discrimination cases over the years and they all were about terminations. We never lost any of them, but we always had very tight procedures and, of course, used only sound legal reasons for our decisions.

[Paul]

Really, I wasn't aware of that. I've dealt with threatened suits for terminations but never for "not hiring". There was some chatter about a law in NYC that would allow non hired applicants to file suit. Anyway I'm glad it's rare! It would be a nightmare for employment if companies had to fear law suits from job applicants...jeesh!

[Cutler4Life]

I couldn't agree more with the last bit here. When it comes down to it, all governmental practices aside it's your business. You know things about people that wouldn't be favorable to your business.