Not all Questions are Good Questions: Avoiding Discriminatory Interview Practices

Much ink has been spilled over a recent decision by the Commission de la fonction publique (the "Commission") on the topic of discriminatory interview practices. In Association des procureurs aux poursuites criminelles et pénales et Directeur des poursuites criminelles et pénales[1], the Commission found that the plaintiff had been discriminated against when she was denied a position due to her pregnancy. The Commission decision was mainly based on her employer's comments and questions prior and during her interview. The Commission ordered that she be granted the position.

• FACTS

Following R v. Jordan[2], a landmark decision rendered by the Supreme Court of Canada on the subject of the delays for an accused to be heard, the Director of Criminal and Penal Prosecutions (the "DCPP") created numerous new legal positions in order to reduce such delays. The plaintiff in this case was already a lawyer with the DCPP when she found out that she was pregnant and applied for one of the newly created positions.

When her manager, who was also a member of the selection committee, found out that she had applied for one of the new positions, she told the plaintiff: "[our translation] you can't apply, you won't be here," referring to the fact that she would be on maternity and parental leave and therefore not available to start immediately. Furthermore, during the interview, she was asked if she was going to take a long or short leave following the birth of her child.

Prior to the interview, the plaintiff was ranked first out of the candidates who had applied and were selected for an interview due to her experience and her previous evaluations. Following the interview, she was ranked third. Therefore, she did not get the position. The employer explained that she was not selected for the position essentially because she did not "[our translation] sell herself" well during the interview.

• DECISION

In its decision, the Commission applied the two-prong analysis confirmed by the Supreme Court decision in the 2015 Bombardier case, that is (1) determine whether there is prima faciediscrimination and (2) if so, is the contested decision justified in some other manner.

In this case, the Commission determined that there was a clear link between the plaintiff's pregnancy, which is an prohibited ground of discrimination under the Quebec Charter of Human Rights and Freedoms, and the refusal to grant her the position. The DCPP knew that she was pregnant during the interview process and asked her a question directly related to her pregnancy that had no relevancy to the position. The Commission determined that such a question and any other sensitive question relating to a person's pregnancy are illegal and should never be asked during an interview. Candidates must not be asked questions based on prohibited grounds of discrimination during such a process. Moreover, the Commission also found that the manager's comment prior to the interview relating to the plaintiff's absence from work during her maternity and parental leave was also discriminatory.

The Commission explained that it was inconceivable that she went from being ranked first prior to the interview to being ranked third, and ultimately not getting the position, only because she didn't "[our translation] sell herself" well during the interview. She was the most experienced candidate and should have gotten the position. The Commission concluded its analysis by stating that her candidacy was simply refused because she was not going to be immediately available because of her maternity and parental leave.

The Commission determined that the only appropriate remedy was to order that the plaintiff be granted the position. Re-doing the interview or the selection process would only give the employer another opportunity to refuse her candidacy for the position. The Commission found that she should have gotten the position in the first place, therefore, the employer should be ordered to grant her that position.

• Lesson Learned

This decision not only serves as a cautionary tale for employers with regard to the type of questions that may be asked during interviews, but also with regard to comments that may be made prior to an interview. Furthermore, although not expressly mentioned in the decision, it does not appear that the Commission considered the employer's need to fill the position quickly to be a valid justification for refusing the plaintiff's candidacy. Indeed, an employer can hire a temporary employee to fill a vacancy during an employee's maternity and parental leave.

Finally, this decision is only one of many recent human rights decisions in Quebec where tribunals found that a candidate had been discriminated against mainly because of the questions that were asked during the interview process[3]. Therefore, employers, especially in Quebec, should consider updating their interview protocols or providing additional training to those conducting interviews to reduce their risks of having discrimination complaints filed by persons' whose candidacy are ultimately not retained.

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Article written/published  by: Michael Adams /FASKEN
Article published on:  OCT 10, 2018
Article spotted by: Kathryn Benson and posted by Louise Burden

How to ask the right interview questions — and avoid the wrong ones

Those new to the field might think that interviewing a candidate for a job would be a straightforward task: ask candidates questions, get answers and make a hiring recommendation or decision.

But HR and hiring managers must be careful to ask the right questions, and avoid those that are off limits. Questions that would be fine among casual acquaintances often are inappropriate for a job interview; conversely, those who look to avoid a mistake may hesitate to probe subjects that should be discussed.

So where's the middle ground? Experts who spoke with HR Dive helped to create a concrete list of guidelines that can help you get the information you need without exposing you — and/or your organization — to legal risk.

Know which topics are off limits

Some questions should obviously be avoided, Jeffrey Beemer, business lawyer at Dickinson Wright, told HR Dive. These are questions that ask directly or indirectly about protected classes including age, race, ethnicity, gender, national origin, marital status and disability status.

"Questions that are asked in an interview don't necessarily violate the law in and of themselves," Beemer said. "The problem is when an employer asks about an applicant's membership in a protected class or that would lead to the discovery of whether someone is in a protected class." If the applicant is then not hired, she can say that information was used in a discriminatory way, Beemer said.

While it's a simple concept, the execution can be trickier, especially when the intent is not to violate discrimination laws, but to build a rapport with a candidate.

If a candidate appears obviously pregnant, for example, a natural instinct might be to ask when she's due. Or if someone has an interesting accent, it may be tempting to ask where they are from — but don't, said Jenn Betts, employment attorney at Ogletree Deakins. "It's human nature to want to be friendly and build a connection, but part of being an HR professional is recognizing what is and what is not an appropriate thing to say," she said.

Avoid the unnecessary questions

While few applications still ask an applicant's age, many still get an approximation by asking the applicant when they graduated from college. While this is not an obvious age question, it still solicits information that is protected, and therefore should be avoided, Betts said. It also does not provide information that is useful in assessing the candidate's qualification for the job.

Likewise, salary history questions have long been used to determine whether a candidate's previous salary was in range for a given job. But research showing that this practice may perpetuate gender and racial pay gaps has prompted a growing list of states and localities to ban such questions. What's more, not all state and local laws are uniform in spelling out what employers can ask and how they can use the information. Given this picture, Betts said, HR professionals should focus on salary expectations instead. 

Ask the sticky 'accommodation' questions

Newer HR professionals may worry they can't ask any personal questions, yet it is sometimes their responsibility to do so. One area that can make interviewers uneasy is disability accommodations.

Interviewers can ask a candidate about accommodation, but it's how you do it that is key, Sarah Riskin, labor and employment attorney for Nilan Johnson Lewis, told HR Dive. If you're interviewing for a job that requires using heavy machinery and a candidate has an obvious physical disability, you can ask specific questions, she said; "You can ask about an essential function."

For example, an interviewer could say, "An essential function of the job is X. Are you able to do that with or without a reasonable accommodation?"

Riskin said she advises interviewers not to ask about the disability itself or why an accommodation is needed, but to focus on the candidate's ability to perform the job.

Interviewers should be asking all candidates the same questions for consistency, Riskin said. But interviewers also do not have to ignore an obvious disability that could prevent an individual from performing the essential functions of a job. "As a matter of federal law — and every state could be different — if there's an obvious disability that makes you question if someone can do the job, you're entitled to ask specifically to make sure they can do the job," she said.

Sidestep interviewing minefields

Even if an HR professional diligently focuses on keeping an interview on track, a candidate can inadvertently steer the conversation off the rails. Suppose, for example, the interviewer asks, for job-related reasons, whether or not the candidate speaks another language. The candidate not only answers the question, but describes how she learned the language, how she grew up in a certain country, or perhaps her experience moving to the U.S.

Because this information could tap into an existing bias, it is important to redirect quickly, Riskin said. Interviewers can pivot, saying, "That's really interesting. I'm glad you speak that language. Let's talk more about the other requirements of the job," she suggested.

Maintain accurate, updated job descriptions

The ability to ask job-focused questions relies on having accurate and updated job descriptions, Betts said. Some companies have outdated job descriptions that have little to do with the current requirements of the job. To be safe, make sure the description is for what the position is really doing, Betts said.

In creating these job descriptions, hone in on essential job functions. If the job requires that candidates be able to stand for six hours, lift 20 pounds or other tasks, include them. And if it doesn't truly require those tasks, they should be excluded. Then, when you look at the job description alongside your interview questions, you can ask yourself:

• What is the purpose of each question?
• Is there underlying information I'm trying to get and, if so, can I ask for it directly?
• Does the question provide information on the candidate's ability to complete an essential job function?

This review will help new and experienced interviewers avoid the questions they shouldn't ask and tackle the ones they should, Beemer said. "The trained HR professionals don't get squeamish. They are well-prepared and have a plan of how they're going to cover [these issues] with all applicants during the interview process."

Click here to read the full article....

Article written by: Pamela DeLoatch

Article published in: HR Drive / July 16, 2018

Article Spotted by: Louise Burden

Hiring in the Age of Salary History Bans

Across the country, state and local governments are enacting new laws that prohibit employers from requesting salary information from job applicants.

The laws are an effort to reduce pay inequity, particularly for women and minorities. 

Photo by Eddy Lackmann on Unsplash

In theory, workers who have experienced pay discrimination will continue to do so in potential jobs if the salary offered is based on previous earnings, thus continuing the cycle of discrimination.

Some of the law merely forbid employers from asking about salary history, but some prohibit employers from using that information to set pay even if they discover it inadvertently.

The upside

The upside to the legislation is fairness for candidates. Proponents of these laws say that businesses should focus on the value of work on the work itself, employees' experience and performance, as well as market factors that drive salaries.

For some in HR, the logic behind the legislation is understandable. “The intent is that previous employers might have used discriminatory practices in establishing that pay rate or salary so future employers will stop that cycle,” says Derek Jones, deputy VP of business development at Deputy, a workforce management company.

And recruiters are already adapting. “What we're seeing are more recruiters posting salary ranges on external job posting or covering this in the first phone screen," Jones said. "This level of transparency can benefit recruiters from wasting time with candidates who make it to a phone screen only to be disqualified for being out of that range."

The downside

While recruiters may be able to shift gears easily in the wake of these laws, the brunt of the compliance challenges may fall on employers, because they have to set those salaries.

This is especially true for businesses in California, which will have to provide job pay scales upon request. "That disclosure requirement, coupled with the restriction on using salary history to justify an increase in compensation, is likely to lead to more structured compensation practices," says Margaret Keane, partner with DLA Piper

Many employers don’t have formal pay scales and job grades or even particularly well-defined compensation parameters for a position, even when they solicit applications, Keane told HR Dive.

Negotiations will have to change, too, says Veronica Valenzuela, HR manager at CPS Security.

“Before we post an opening, we conduct a salary analysis to see where the market is for a specific position. We’re pretty transparent when we post our openings, including the salary range in ads," she said. "But asking about salary history saves time, helps determine the candidate’s salary expectations, and helps with negotiations. Applicants already know how much the position is paying, but that doesn’t mean we won’t be flexible if they’re seeking higher compensation."

In addition, complicated situations are sure to arise when an applicant volunteers information or when a highly sought-after candidate won't accept the employer's pay range. Mergers and acquisitions are sure to present unique challenges, too. 

“Employers adding to the workforce through mergers and acquisitions will need to be cognizant of compensation differences between existing and new employees performing substantially similar work under similar working conditions," Keane said. "Addressing disparities rooted in different cultures will be a new challenge for HR professionals in the integration phase and will require a clear evaluation of how experience, performance, and productivity factor into compensation in a given role."

Photo by rawpixel.com on Unsplash

To do today

If you're subject to any of these laws, the first and simplest thing to do is remove questions on print and online applications that request compensation history. But the more difficult shift — and the biggest area of risk — will be training for managers. HR needs to train these individuals quickly, Jones said.

They'll no longer be able to ask any questions about previous pay, including commissions and, in some cases, benefits. Instead, hiring managers will need to ask more generic questions, about employees' earning expectations, for example. Employers will have to ensure that outside recruiters do the same; in Delaware, for example, employers can be held responsible for recruiters' violations unless they've provided such instructions.

Finally, as Keane noted, employers will likely have to create a salary range for each position and ensure that the variations within those ranges are based on things like merit, education and experience.

Whether or not your jurisdiction is covered by the new laws, the trend seems to be taking hold. Similar measures are under consideration in a number of jurisdictions, and it may only be a matter of time before more join this growing list.

Where are the bans? Nine jurisdictions have adopted bans that apply to private employers.

Click here to read more detail about state and city specific bans. 

Article Spotted By: Alison Peters

Article Written By: Riia O’Donnell

Article Originally Published November 2, 2017 on HR Dive

The One Question You Should Ask About Every New Job

Article spotted by Alison Peters
Original article by Adam Grant 
Originally published December 19, 2015 on the New York Times Sunday Review 

TWO years ago, a student of mine named Nicole was torn on where to start her career. While applying for jobs in finance, technology, consulting and marketing, she suddenly realized that her biggest concern wasn’t what she did, but where she worked.

When it comes to landing a good job, many people focus on the role. Although finding the right title, position and salary is important, there’s another consideration that matters just as much: culture. The culture of a workplace — an organization’s values, norms and practices — has a huge impact on our happiness and success.

But how do you figure out the culture of a company you’ve never worked for? As Nicole tried to evaluate company cultures, she kept asking the Passover question: “How is this organization different from all other organizations?” And, as with Passover, I told Nicole, the answer should come in the form of a story. Ask people to tell you a story about something that happened at their organization but wouldn’t elsewhere.

After collecting stories from people at different levels of an organization, Nicole noticed that they touched on common themes. That was a good sign: There was some consensus about the company’s values. But when she talked to other companies, the same kinds of stories kept surfacing in every company she talked to. Why?

Read more...

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