Hiring in the new millennium
By Jay MacDonald • Bankrate.com

So you think your trickiest hiring dilemma is finding a delicate way to suggest to your bright new sales candidate that she leave her eyebrow ring at home?

Try on these scenarios:

• In Illinois, employers are now required to provide a separate room to accommodate the needs of nursing mothers.
• In New Jersey, lawmakers are wrestling with how to expand a sexual-discrimination statute to protect the rights of transsexuals.
• In Wyoming, an employee who was fired because he was suicidal claims discrimination under the Americans With Disabilities Act.

Businesses in general, and small businesses in particular, are increasingly feeling squeezed when it comes to hiring. The list of questions you can legally ask a job candidate seems to get smaller while the myriad ways in which disgruntled employees can sue you for discrimination continues to grow.

How can you get enough information to make a good hire without putting the company at risk if it doesn't work out?

The answer lies in understanding the new realities of modern hiring and how it may affect the way you build and manage your work force.

Layoffs and litigation
Attorneys on both sides of the fair-labor-practices issue admit that litigation has recently increased, in part due to the rash of layoffs during the economic downturn.

"There has been such a switch; it's been dramatic," says Elaine S. Fox, labor and employment attorney for D'Ancona & Pflaum of Chicago, which defends employers.

"Last year, we were attending conferences on how to attract and retain employees because the employment market was so tight. We weren't seeing the litigation because employers weren't terminating mediocre performers for fear they wouldn't get anybody to replace them. Also, if employees were terminated, there was very little damage because they would get a job right away.

"Today, it's different, and given what has happened in New York and Washington, more people are going to be let go, and I almost think it's inevitable that people are going to be looking for some kind of money."

Attorney David Greenberg, whose Hollywood law firm represents plaintiffs, says corporate America, not small business, takes the brunt of the claims.

"You ordinarily don't want to sue a small company," says Greenberg. "There's no money; the employer isn't a big enough company for me to go after. If it's a small company and they have insurance, they don't have to worry, and if it's a small company and they don't have insurance, most experienced lawyers won't want to sue you."

Laying down the labor law
Employees, meanwhile, have never had so many grounds for litigation, including (but not limited to) these federal statutes:

• Equal Pay Act of 1963: Equal pay for equal work, regardless of sex.
• Civil Rights Act of 1966: Prohibits discrimination based on race or ethnic origin.
• Title VII of Civil Rights Act of 1966: Prohibits discrimination based on race, color, religion and sex, and prohibits sex discrimination based on pregnancy and sexual harassment.
• Immigration Reform and Control Act of 1986: Prohibits discrimination based on national origin or citizenship of those authorized to work in the United States.
• Equal Employment Opportunity Act: Prohibits discrimination against minorities based on poor credit ratings.
• Americans with Disabilities Act: Prohibits discrimination against persons with disabilities.
• Bankruptcy Act: Prohibits discrimination against those who have declared bankruptcy.
• Age Discrimination in Employment Act: Prohibits discrimination against people age 40 and older.

Greenberg says it's generally harder to win a discrimination case against a small business than a large corporation.

"The small employer has an advantage because there probably won't be any statistical evidence of discrimination," he says. "If a company is not hiring any blacks and they have 500 employees, I can probably claim that I wasn't hired because of my race. But if you have an employer with 10 employees, statistically maybe you should have one out of 10. It's just harder to prove statistically on a smaller company vs. a larger company."

Nevertheless, nobody wants to be dragged into a discrimination suit.

"Litigation is extremely expensive," says Fox. "The old adage, 'An ounce of prevention is worth a pound of cure,' is absolutely germane to the situation."

Become a better interviewer
Human resources consultant Judy Clark doles out that ounce of prevention to her 1,500 clients nationwide by helping them become better interviewers. She says not only does the advice of her Portland, Ore.-based HR Northwest help them minimize their exposure to litigation down the road, but her clients usually wind up making better hires as a result.

Clark says sure, you need to familiarize yourself with and avoid asking the growing list of unlawful questions. But that shouldn't be hard if you're interviewing correctly.

"The key to interviewing is learning to ask the questions that really matter," she says. "People may feel like they need to ask, 'So how are your day care arrangements?' because that's going to tell them whether somebody can be depended upon to be at work. It's an illegal question.

"But you can ask, 'Tell me about your ability to consistently and dependably work this schedule.' That's a much better question because, with the first question, they may answer, 'I don't have kids,' but they didn't mention that on the side, they raise pedigree collies and they've never missed the birth of a new litter. You're just as concerned about that as an employer as you were about the kids, but you didn't ask the right question so you don't know it."

Three key considerations
Clark says interviewing job candidates is a three-step process:

1. Can-Do: What has this candidate done that relates to ability to do the job?

2. Will-Do: Of those who can do the job, who will do it? Past performance will tell you a lot. "Basic habit patterns rarely change,' says Clark. "If I've always been a blamer, guess how I'm going to act for you? If I've always been a victim, guess what I'm going to be for you? But if I've always been a survivor, I've always been promoted, guess what I'm going to be for you?"

3. Best Fit: Which of those who survive the Will-Do test best fit your organization, short- and long-term?

Clark says small businesses seek her advice when they can't be objective (say in replacing a longtime favorite employee), can't keep their hires or can't seem to develop those they do hire.

"I think it's a worthwhile endeavor to look at the employment process and say, have we fashioned it appropriately to get us positive, productive results? My experience has been that the smaller the organization, the less time and expertise they have to be able to pull that off," says Clark.

"There are a lot of organizations that could use some real substantial help at assessing the effectiveness of their recruiting and hiring process."

Jay MacDonald is a contributing editor based in Mississippi.

-- Posted: Nov. 30, 2001