Avoid risks in hiring: Evaluate only skills and abilities

Kirstin Guptill
Kirstin Guptill

Most business professionals have heard of Title VII of the Civil Rights Act of 1964 and know it’s unlawful to discriminate on the basis of race, sex, color, national origin or religion. In recent years, other categories of people have found protections for age, disabilities, political affiliation or beliefs and sexual orientation.

While it should never be the intent to discriminate against a person for these reasons, it’s also important for business owners and managers to remain aware of perceptions that could be misconstrued as discrimination.  The question persists in the litigious world in which we live: How do we protect ourselves and our businesses from a discrimination claim?

One way to mediate the risk in the hiring process is to consider  candidates only in terms of their work- related skills, knowledge and abilities. If there’s a fact that’s discovered that has no bearing on whether or not an applicant can do the job, leave it out of the decision-making process.

Instead of asking why we should we hire a candidate, we should ask why not hire this person. Do they have the necessary skills or lack an important skill? If an interviewing manager can say yes to the first and no to the second, the candidate deserves a chance for the position. When narrowing down candidates, the hiring manager must compare each candidate for the same skills, knowledge and abilities, only eliminating a candidate when another shows superior skills, knowledge or abilities in a particular category.

Can a business be responsible for discrimination of a nonemployee? By nonemployee for this purpose we will consider contractors and workplace host sites that have multiple organizations working together.

According to an article by Paul J. Sopher and Ryan D. Freeman titled “How an Employer May Be Liable to Its Nonemployees,” there’s a real risk of liability. According to the article, “Courts have found that an entity can be held liable to a nonemployee under a joint employer theory where, through its contractual relationship with the employer, the entity exercises control over the terms and conditions of the individual’s employment.” To determine whether or not an entity has sufficient control, courts consider if the entity has control in the hiring, firing or discipline of the worker; pays the worker; or supervises the day to day work of the employee.

In some cases, a company could be liable even if the above mentioned scenarios are not present. This can happen under what’s called the “gatekeeper” theory in which a person can make a claim and recover if the entity interfered with person’s employment opportunities and are based in discrimination factors.

How do businesses protect themselves from discrimination claims from a nonemployee? The business should not recommend a contractor or other organization that works within a site to take any action that would be deemed discriminatory if they performed the same way with their own employees. In simple terms, anyone who works with or alongside your organization should be awarded the same respect and treatment you offer your own employees.