Most dental practitioners are reasonably well versed about the possible pitfalls attendant to a decision to terminate an employee. By comparison, the issues and dangers surrounding hiring practices tend to be lightly regarded and the implications of a flawed hiring process virtually ignored. This article highlights general areas of concern, consideration, and strategy that should be addressed in the hiring process.
At virtually every level of government (county, city, state, or federal), laws have been enacted to ensure that all employment practices and decisions are made on a nondiscriminatory basis. Many dental practitioners with small offices are of the erroneous view that their size precludes application of discrimination laws or minimizes the likelihood of being targeted for suit. Neither assumption is with foundation, legally or practically.
Almost every state has a discrimination statute. The minimum number of employees required for statutory coverage is determined on a state-by-state basis. Practices with 4 or more employees are covered by statute in a significant number of states (eg, Pennsylvania, Ohio, New York, Colorado). Some states require fewer than 4 employees, others more. However, the failure to be covered by state statute does not mean immunity from suit since city, county, or local entities may have their own discrimination statute and a lower size threshold. Clearly, review of all possibly pertinent discrimination statutes must be undertaken before a practitioner can truly feel insulated from discrimination claims.
Dentists often do not view themselves as likely targets of employment-related suits, owing to their practice size. Although size may be a factor, the litigious nature of our culture, the prevalence of insurance, and the perception that dentists have “deep pockets” strongly suggest that a proactive approach to hiring is as necessary in small practices as in large.
Two other profound misconceptions about hiring are also prevalent. The first is the notion that the employment relationship is of an “at-will” nature. The at-will employment doctrine views the employment relationship as voluntary and terminable by either party at any time for any reason or no reason at all. Many employers in at-will states erroneously conclude that the perceived freedom to terminate implies freedom in entering into the employment relationship. An employer, even in an at-will state, is not free to make hiring or firing decisions that are discriminatory.
The second, and related, misconception is that an employer who employs new-hires for a probationary or introductory period may terminate an employee within that period, without legal repercussion. This is wrong. If the termination is made for a discriminatory reason, the termination is subject to challenge. Hiring practices predicated on this faulty notion of future protection will not stand.
The breadth of discrimination statutes varies from state to state. For instance, sexual orientation is a protected status recognized by only 13 states. Notwithstanding the differences, all discrimination statutes have the same core principles: employment decisions must be made without regard to an individual’s attributes or beliefs (age, race, sex, disability, ethnicity, religion, etc). Only job-related matters may be considered. Decisions made at every stage of the hiring process must conform to that principle.
Moreover, agencies and courts charged with enforcement of discrimination statutes do not require direct acts or statements to conclude that violation has occurred. Employers enjoy few if any favorable presumptions under the discrimination laws. Conduct wholly without discriminatory intent may still constitute discrimination. Discrimination may be inferred from seemingly innocent questions or statements that elicit information about an individual’s protected status. Similarly, discrimination may be inferred from hiring requirements that are not truly necessary to job performance but have a disparate impact among minorities or others in a protected class.
ADVERTISING FOR EMPLOYEES
The wording of an advertisement becomes the first area of hiring concern. Advertisements should only articulate conditions or attributes necessary to the performance of the position. Other conditions that are not facially discriminatory may be deemed unlawful as having the effect of precluding application by individuals of a protected class.
For instance, assume you need a receptionist. Telephone skills, a pleasant disposition, light typing skills, and getting to work promptly are the only essential functions. An advertisement for the receptionist that requires applicants to have a college degree or a car limits applicants and disparately removes minorities from consideration. It is universally recognized by federal and state agencies that minorities (eg, African-Americans and Hispanics) do not attain college degrees or have cars to the same degree as nonminorities. Therefore, an applicant without a degree or a car may still fulfill the essential job functions of receptionist, but the advertisement will be deemed evidence of discrimination.
Questions on an application form may unwittingly or inferentially elicit information about an individual’s protected status. As status is an irrelevant consideration, the question is evidence of discrimination. Enforcement agencies will make inferential leaps that few practitioners make or even conceive. Asking a person the year he or she graduated from school is irrelevant to the point of having graduated but is directly revealing of age—an impermissible inquiry. Asking applicants to list their membership in all organizations may well elicit information regarding religion and therefore is impermissible and unnecessary. However, asking for a list of professional organizations would probably be relevant.
Clearly, questions must be job-related and relevant. Questions may be relevant for one job classification but inappropriate for another classification. Relying on commercially available application forms may be problematic, since forms sold nationally may pose questions deemed inappropriate in your jurisdiction or be so generic as to omit or include questions not relevant to the position being filled. Fortunately, many states publish guides to inquiries to assist employers in framing proper application and interview questions.
During an interview, an employer enjoys no greater legal latitude than is permissible in the advertisement or application process. Again, only job-related inquiries should be made. Employers are encouraged to ask all applicants the same questions. While appearing somewhat cold or dispassionate, such an approach represents some protection against specious claims of inappropriate questions.
A few other pointers should be kept in mind. First, avoid making any written notation referencing directly or via code a person’s status or attributes. Even though such notations may be solely for purposes of recall, the notation creates a presumption of consideration of nonjob-related factors.
Second, test one, test all. Regardless of how accurate your assessment may be of a candidate’s abilities, when you doubt a candidate’s abilities, do not selectively test. Selective testing is evidence of stereotyping and discrimination. If an applicant for the aforementioned receptionist position is male or has a withered arm, asking only that person to take a typing test is evidence of sex or disability discrimination unless all candidates are tested. If you do not generally test typing skills, you may still advise candidates of speed requirements and ask if they can satisfy your requirements with or without reasonable accommodation.
The third pointer relates to the duty to accommodate reasonably. The duty arises in connection with disability and religious discrimination. Candidates with disabilities or religious limitations should not be rejected until consideration has been given to accommodations that may be made and will enable the person to perform the essential functions of the job. If the accommodation is excessively expensive, places additional or excessive burdens on other employees, or fails to enable the individual to perform essential functions, then the candidate may legally be rejected. For instance, an applicant for receptionist who has carpal tunnel syndrome and can type satisfactorily only with an inexpensive hand elevating pad can perform the essential functions of the job with reasonable accommodation and may not be rejected because he or she cannot do so without the accommodation.
The fourth pointer pertains to overselling. Inducing an individual to leave a current job or to relocate to your geography could under limited circumstances create an implied contract of employment and eliminate the presumption of at-will employment. Buzz words like “lifetime employment,” termination only for “cause,” and “permanent employment” should be avoided.
OFFERS AND REJECTIONS
One of the greatest yet avoidable problems in the hiring process concerns background checks. Untold employers, usually owing to a trusting nature, cost, or time constraints, have extended unconditional employment offers without first conducting background checks. An employer has the right to condition employment on background matters subject to disclosure and waiver procedures.
Recent court decisions finding employers responsible for the acts of employees against third parties suggest criminal background checks be undertaken to avoid claims of negligent hiring. Because most states permit pre-employment drug testing but otherwise limit testing during employment, a practitioner’s best opportunity to ensure a drug-free workforce is to condition employment on a drug test.
Lawsuits arising out of the hiring process are ordinarily lodged by rejected applicants. Thus, the reason given for rejecting a candidate should be of concern. An employer generally is not duty bound to expound on its reasons for not hiring. Certainly, giving no explanation is superior to statements intended to soften the blow but are untrue. Untruths (eg, “We are not hiring” or “Our search is ongoing”) may be intended to avoid hurt feelings but make a strong presumptive case of discrimination.
By recognizing that the hiring process is governed by many laws and regulations and by becoming aware of the common pitfalls, dental practitioners can avoid unnecessary claims and potentially costly litigation.
Mr. Schneider is a partner at Kaufman, Schneider & Bianco, LLP, in Jericho, NY, a leading law firm concentrating exclusively in employment law, labor relations, and related litigation on behalf of management. He can be reached by calling (516) 681-1100.