Practical strategies for stopping employment discrimination

by Patricia Eyres

Every employer needs clear business/legal strategies to navigate through the myriad of today’s complex employment issues. While many employers believe that employment laws impose regulatory and compliance requirements that cost too much and actually impede good business practices, the fact is that many of the same strategies that keep businesses out of legal trouble also make practical business sense. 

In order to increase employee productivity and aid in their defense against employee lawsuits, smart employers take measures to consider and implement specific workplace procedures that compliment existing employment laws.

Develop objective and consistent job descriptions
Clearly defined, well-written job descriptions serve a dual purpose. First, they provide a specific, job-related roadmap for supervisors to follow when placing employees in specific jobs and for later evaluating their performance. When followed correctly, the job description increases the likelihood of the employer placing the right person in the job. Additionally, objective position descriptions assist in defending against discrimination claims.

Employers who must comply with disability discrimination laws greatly benefit from having objective standards by which to evaluate the qualifications of all applicants and employees. Under the Americans With Disabilities Act (ADA), a disabled individual is defined as a person who has:

• a physical or mental impairment that substantially limits one or more of the person's major life activities;
• a record of such impairment; and 
• one who is regarded as having such an impairment.

To invoke protection of the ADA, a job candidate must be both disabled and “otherwise qualified” to do the job. This means the person must be able to meet all of the essential functions of the job with or without reasonable accommodation. To avoid unlawful discrimination, the hiring manager must recognize the essential job functions in order to seek appropriate information in applications and interviews. Employers should also enforce work rules and performance standards based on job-related criteria to avoid discriminating.

Employers must consider each applicant on the basis of individual capabilities. The key requirement is to determine precisely the characteristics, skills, education, and experience required for the position and then to assess each applicant against those specific, job-related criteria. Thus, one of the essential factors for avoiding discriminatory pre-employment screening is the existence of comprehensive job descriptions. 

Every supervisor who develops a job solicitation or interviews a prospective employee should thoroughly understand the job’s essential functions and the objective standards by which they will evaluate applicants.

The benefits of clearly defined job descriptions
Subjective job functions, such as “Job requires heavy lifting,” cannot be quantified in a court of law, as they are open for varied interpretation. 

In contrast, an objective description, such as “Position requires lifting boxes weighing 70-100 pounds, 60 percent of the time,” specifically outlines quantifiable metrics that can’t be disputed. 

Additionally, creating objective job descriptions forces employers to focus on precisely what knowledge, education, skills or experience will be required to meet the essential functions of the open position.

For example, each applicant who responds to a job description that reads, “Good communication skills, both verbally and in writing,” will have a different definition of “good.” 

However, when the position description is rewritten to state, “ Successful candidate must have a 10th grade reading proficiency. Six hours per day involve telephonic customer support on spreadsheet software,” those applying for the position have the ability to adequately assess their own skills in relation to what is required.

For employers, clearly defined, objective job descriptions make employee recruitment easier, as they promote consistency in comparing prospective employees. Because employers can now judge every applicant against the same objective criteria, rather than subjective observations, there is a greater likelihood of placing an individual who can competently perform the job requirements, thereby increasing productivity and decreasing turnover. 

Furthermore, it enhances documentation of the job’s essential functions, as well as the experience, education, skills and/or knowledge required for positions in the company.

Avoid the perils of faulty job descriptions
The absence of comprehensive, well-planned job descriptions promotes inconsistency and threatens the objectivity of both pre-employment screening and performance standards enforcement.

The more subjective the stated standards, the greater the opportunity for subtle discrimination. For example, a subjective assumption would be that a disabled individual who has a pre-existing back injury would be unable to lift heavy objects.

As a result, an employer may ask an improper question, such as “Will your prior back injury prevent you from lifting heavy objects?” 

If the employment candidate does not know the objective requirements for the job, he or she is giving an answer without complete knowledge of the situation. Thus, an employer may be inadvertently discriminating against a qualified applicant.

An objective job description for such a situation could read, “Position requires that employee lift boxes weighing approximately 70 pounds and load them on platforms. This lifting and loading is 25 percent of the daily job responsibility; the other 75 percent is inventory control.”

Now the employer can correctly ask, “This position will require you to lift boxes weighing 70 pounds. That part of the job takes up one-quarter of the day. The remaining three-quarters is inventory control. Can you lift 70 pounds for this percentage of the day? If not, is there any reasonable accommodation that will allow you to do so (such as using a cart or mechanized lifting equipment)?”

In this example, a very precise job description permits the supervisor to properly screen prospective applicants without violating the law. The applicant is not a “qualified individual” unless he or she can meet the objective job performance criteria, with or without reasonable accommodation. 

Rather than making an assumption that a person with a prior back injury will not be able to lift items on the job, the manager has a precise, objective standard upon which to measure all prospective applicants. To work effectively, though, the employer must ask every person interviewed the same job-related questions.

Employment laws and your business success
While employment regulations can be time-consuming, when used correctly, they can also contribute to your business’ success. So instead of trying to find your way around existing laws, use them to your advantage to create a productive workplace that produces results. When you have the right people hired for the right positions, your company’s profits are destined to rise.

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