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3. Do not require education or other credentials that are not necessary to perform the job. One example is where a college degree is a requirement to qualify for the job. If the job can generally be done by a non-college graduate, requiring a college degree results in disparate-impact discrimination as many racial and ethnic minorities have a lower percentage of college degrees than does the caucasian race. Do not require the applicant to meet certain physical or mental capabilities that are not required to perform the essential job functions as they could be the basis of a claim of discrimination due to a disability, sex or age as otherwise capable workers. Disabled, women and older workers sometimes cannot meet the same physical requirements as younger, non-disabled male workers.
4. Ensure that your employment application does not contain questions or request a response that may be in violation of the regulations such as but not limited to:
Mr. Mrs. Ms., male or female, nationality, marital status, date of birth, place of birth, date graduated high school, spouses name, have you ever been arrested, have you ever been convicted of a crime, have you ever been in jail, do you have any physical condition that limits your ability to work, etc.
In certain cases some of these questions may be asked if they are truly job related. You should consult a qualified attorney regarding these issues.
It is best if the application form does not have any question that can be used to determine the applicant's race, color, age, sex, marital status, creed, religion, national origin; or the presence of any sensory, mental or physical handicap (add sexual orientation, political ideology, or ancestry as appropriate for the city or county where you are doing business based on their laws on discrimination in employment).
5. You should prepare a written job description for the job you are filling which identifies the essential (required) functions of the job and you can ask the applicant if they are ."..capable of performing all of these essential job functions with or without accommodation." You cannot ask if they can only perform them without accommodation. Accommodation means possible changes in the work, work schedule, workplace, etc. to accommodate a disability. Examples include but are not limited to: special lighting, special seating, unique work schedule, unique supervision, elevated work area, moveable tables instead of lifting and carrying, etc. You cannot, refuse to offer a job to a person with a disability solely because of their disability if they can perform the essential job functions with reasonable accommodation. It is not discrimination to offer the job to someone else who is more qualified for the job than a person with a disability. NOTES: Often, disabled workers make excellent employees and often are more loyal than non-disabled workers. The definition of reasonable accommodation is extremely complex and also considers an "undue hardship" on the employer. You need the advice of a qualified attorney to assist you with this issue.
6. Prepare your interview questions in advance and stay with them for all applicants. Click Here for a list of questions that generally are considered discriminatory and ones that are not.
7. Make sure your place for interviewing is accessible to the disabled including canes, crutches, wheel chairs and guide dogs. If it is not, make arrangements to have such a place available if needed. The applicant must advise you of their needs in advance and you must accommodate those needs in almost all cases.
8. Do not write any notes or comments down on the employment application or other documents you are using that are related to any of the protected attributes of a worker such as but not limited to:
too old, too young, male or female, ugly, pretty, sexy, good looking, possible bad back, Asian, Hispanic, black, Jewish, Christian, Catholic, Protestant, etc.
Such notes can be used in court to demonstrate you may have used this type of discriminatory information in making your hiring decision.
9. You may require all applicants to demonstrate they can perform one or more of the essential job functions prior to making a job offer but you must be prepared to make reasonable accommodations also. You must impose the same requirement on ALL job applicants. For example, you ask ALL job applicant to take a typing test. One of the applicants asks to take the test in a quiet room and not in the noisier typing room location. You can either require documentation from a professional verifying the applicant has a condition that requires such an accommodation or not. Generally you must allow the applicant to take the test in the quiet room, but you can then ask if the worker would need similar accommodation if he/she was hired for the position. If the worker says yes, they would need to work in a quiet room, you cannot base your employment decision on this fact. You can also determine if providing such a quiet room is an undue hardship on your firm. This is very complex law and you need the advice of a qualified attorney to assist you in such a situation. NOTE: Washington's anti-discrimination laws with respect to disabilities providing more protections for individuals with physical or mental disabilities than the federal American's With Disabilities Act so compliance with the federal ADA law may still result in a violation of Washington State's laws.
10. You cannot ask in the interview process if the applicant has an physical or mental condition that would require accommodation to perform the essential job functions. You can only do so after making a "conditional job offer". A conditional job offer is one that is based on the applicant being able to perform all of the essential job functions with reasonable accommodations which are not an undue hardship on your business. This is very complex law and you need the advice of a qualified attorney to assist you in such a situation. See NOTE in 9. above.
11. Include in any written employee policy guide or personnel manual that your firm is an equal employment opportunity employer and that employment related decisions will not be made based on the applicant/workers' race, color, age, sex, marital status, creed, religion, national origin; or the presence of any sensory, mental or physical handicap (add sexual orientation, political ideology, or ancestry as appropriate for the city or county where you are doing business based on their laws on discrimination in employment). A sample of that type of policy is attached.
12. All of these same issues apply to employee discipline, pay increases, pay incentives, bonuses, promotions, discharges, and all other employment related decision in your business. In other words, you must make all of your employment decisions based on factors other than the applicant/workers' race, color, age, sex, marital status, creed, religion, national origin; or the presence of any sensory, mental or physical handicap (add sexual orientation, political ideology, or ancestry as appropriate for the city or county where you are doing business based on their laws on discrimination in employment). Preparing good, clear and correct job descriptions is often a critical element. Preparing good, clear and correct job descriptions is very complex and should likely be done by an individual who has extensive experience at preparing such job descriptions. Ask your attorney to recommend such an individual or to review the work of such an individual prior to contracting for their services. Also, from a risk management standpoint, the best approach is to verbalize the positive and document in writing the negative (copy to the employee) when it comes to communicating to employees about their job performance.
13. Treat all applicants and employees the same. This is critical. You cannot give special consideration to an "outstanding employee" that you will not also give to your worst employee. You cannot discharge your worst employee for a reason you would or did not discharge your best employee. Keep good written records to demonstrate this fact.
14. Prepare a written anti-sexual harassment plan with the advice of a qualified attorney and implement the plan including notification to all employees, appropriate training and responding promptly and appropriately to all complaints or observations of possible sexual harassment. Sexual harassment includes but is not limited to unwanted sexual advances or any condition in the workplace that is "hostile". This includes jokes with sexual overtones; pin-up type pictures even if the model is fully clothed; comments with sexual overtones by customers, suppliers, etc. As an employer, you have a duty to take action to eliminate any condition that results in a sexually "hostile" in the workplace. A sample of this type of policy follows.
SAMPLE EQUAL EMPLOYMENT OPPORTUNITY POLICY
YOUR BUSINESS NAME is an equal opportunity employer. All employees and potential employees will be considered without regard to sex, race, religion, marital status, age, national origin, color, veteran status, or disability (add sexual orientation, political ideology, or ancestry as appropriate for the city or county where you are doing business based on their laws on discrimination in employment). All applicants are carefully screened, and full consideration is given to their training, education, skills, aptitudes, experience, and previous work record. Our Equal Employment Opportunity policy applies to all aspects of employment - recruitment, selection, training, promotion , demotion, transfer, compensation and benefits, layoff, recall, and termination.
SAMPLE ANTI-HARASSMENT POLICY
YOUR COMPANY NAME is committed to maintaining a work environment that is free of discrimination, In keeping with this commitment, we will not tolerate harassment of our employees by anyone, including any supervisor, co-worker, vendor, client, or customer.
Harassment consists of unwelcome conduct, whether verbal, physical or visual, that is based upon a person's protected status such as sex, color, race, religion, national origin, age, medical condition, physical or mental disability, martial status, veteran status, citizenship status, (add sexual orientation, political ideology, or ancestry as appropriate for the city or county where you are doing business based on their laws on discrimination in employment). or other protected status. NAME OF YOUR COMPANY will not tolerate harassing conduct that affects tangible job benefits, that interferes unreasonably with an individual's work performance, or that creates an intimidating, hostile, or offensive working environment.
Sexual harassment deserves special mention. Unwelcome sexual advances, requests for sexual favors, and other physical, verbal, or visual conduct based on sex constitutes sexual harassment when (1) submission to the conduct is an explicit or implicit term or condition of employment, (2) submission to or rejection of the conduct is used as the basis for an employment decision, or (3) the conduct has the propose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. Sexual harassment may include explicit sexual proposition, sexual innuendo, suggestive comments, sexual oriented "kidding" or "teasing," "practical jokes," jokes about gender-specific traits, foul or obscene language or gestures, displays of foul or obscene printed or visual material, and physical contact, such as patting, pinching or brushing against another's body.
All employees are responsible for helping to assure that we avoid harassment. If you feel that you have experience or witnessed harassment, you are to notify insert the name of the owner, general manager, etc. immediately. If you are not comfortable discussing the matter with that person, please feel free to contact name another person in management or say "any manager" . NAME OF YOUR COMPANY forbids retaliation against anyone who has reported harassment.
Our policy is to investigate all such complaints thoroughly and promptly. To the fullest extent practicable, NAME OF YOUR COMPANY will keep complaints and the terms of the resolution confidential. If an investigation confirms that harassment has occurred, we will take corrective action, including such discipline up to and including immediate termination of employment, as is appropriate.
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