Staff Management

Non-Discriminatory Recruitment Language: Find the Right Employees and Protect Yourself Legally

By Pamela Miller, OD, JD

By carefully choosing your words when placing recruitment advertising and conducting job interviews, you can find the best employees for your office and avoid legal perils.

The language you use when writing an ad to find a new employee or during an employment interview is more fraught with potential legal dangers than you may realize. Employee laws differ for each state, and you should first check with your attorney before implementing a new approach to staff recruitment communication, but here are some general guidelines to follow.

DON’T Request Applicants of Certain Age

You may want to change the profile of your office and appeal to a younger demographic by adding one or two Generation Y’ers to your optical staff, but you can’t say in your job ad that you’re looking for a person under 25 or even that you’re looking for a recent college graduate. What you can specify is number of years of experience. If you’d love to add more young people to your staff, advertise that “no experience is necessary” or that “one to two years of experience is sufficient.”

In addition to experience level, salary also will send a message to job applicants. If the salary you offer is what most would consider entry-level, most will understand that the job is for those just starting their professional life. Similarly, you can’t say that you’re looking for a licensed optician with experience selling to young professionals, but you can point out where your office is located. By stating that one to two years of experience is acceptable and that your office is located in a neighborhood known in your community as a young professionals enclave you are sending a legally safe message that you are looking for a young person who is comfortable in that environment.

DO Focus on Skill Sets

Another safe way to cue job seekers that you are looking for a staffer with a particular profile is to list the tasks associated with the job. You could advertise that you are looking for a person with one to two years of experience to work on an entry-level salary in an office based in a neighborhood like New York’s Wall Street and that the person must be adept at marketing via social networking and proficient at working in web site content management systems. That ad would almost surely result in a pool of young applicants without you ever having to get yourself in legal trouble by saying you’d like to hire a young person. The job ad medium also sends a message. If you only post job ads online, on sites like Craig’s List, and you specify that the application most be e-mailed rather than sent via postal mail, faxed or dropped off in person, you are sending the message that the person must be comfortable with the online world.

DO Carefully Provide Practice Specialty Demographics

It’s OK, and even a good idea, to send cues to job seekers about the kind of patients you see, but you can’t say anything that would even indirectly say that you are only looking for an employee in a certain age group. For example, you can note that your office specializes in geriatrics, but you can’t say the majority of the patients you see are between the ages of 55 and 80. Listing the typical age range of patients could be interpreted by some applicants to mean you only want an employee who also falls within that age range.

DON’T Specify Ethnic Group; DO Note Patient Needs

If you’re opening an office in an area with the potential to draw many new Hispanic patients and you’d like to hire at least a few Hispanic employees, you can’t simply say so in the job ad. While you can’t specify that you’re looking for a Hispanic office manager, you can state that you are looking for someone who is fluent in Spanish. Like the earlier example of the office looking for young professional staffers, you also can send a cue to job seekers by describing the neighborhood the office is located in and note that at least a quarter of the patients do not speak English at all.

DON’T Ask for Non-Smokers, Non-Drinkers; DO Choose Carefully Where Ad Posted

Let’s say you can’t stand being around people who smell of cigarette smoke, and would hate to have a staffer taking breaks every couple of hours to create clouds of smoke outside your front door for patients to walk through. You can’t simply say in your job ad that “Only non-smokers need apply.” Even though a person from any ethnic group and any age could smoke, ruling out people with a certain personal habit would be considered discriminatory in many states. What is within your control is where you post your ad. For example, I like posting ads at the local Mormon employment center. I know that this center pre-screens applicants and that due to religious beliefs it is almost assured that no applicants they send to my office will be smokers or alcohol drinkers. You can do the same thing by choosing to post your ad at a local church, synagogue or other community center that has a pool of people with characteristics you are looking for.

DON’T Ask About Personal Situation in Job Interview

After you have arrived by legally safe means with the kind of applicants you want, the next potential for legal trouble is the job interview. To be friendly, you may be tempted to warm up the conversation by asking where the applicant lives or whether they have any children. Both of those inquiries are a legal no-no. You are not permitted to inquire about personal details such as where the applicant lives, whether they are married, have children or what ancestry their last name stems from.

These are all innocent questions that often come up when making small talk, but in the employment world they could be considered discriminatory. A female applicant who is asked if she is married and does not get the job, could claim that by asking that question your office signaled that it considered marital status a determinant for employment. If the woman is obviously pregnant, you shouldn’t offer a congratulations unless she mentions it first. Like marital status, your well wishes could later be held against you to mean you were noting and possibly holding against her that she is pregnant. You also may be surprised to learn that you cannot ask whether a person is serving in the military. Military status is yet another personal detail that a person could claim you held against them when making your hiring decision.

DO Focus on Ability to Fulfill Work Schedule

During the job interview you can tell the applicant the hours and days of the week they would be expected to work if they get the job. You could say, “We are open seven days a week from 9 to 5 with all employees expected to take turns working at least one Saturday a month, and we also expect employees to share responsibilities for taking turns working all the other days of the week, as well. Would you be able to do that?” If a young mother or father with a growing family will not be able to handle that responsibility, that question will bring that inability to the surface in a non-discriminatory way. Likewise, if you offer information about the hours of the office’s operations and state that all employees need to be at the office by 8:30 am on the days they work, you are sending the message that they need to live close enough to the office to get there early in the day.

DO State Physical Requirements

It is illegal to ask a job applicant if they have a physical disability that will hinder their work. But you can tell the applicant in the interview–and point out in a tour of the office–that you have a two-floor office with no elevator and that they will be expected to work in both levels of the office. You also can point out any equipment the employee will have to be physically adept enough to work on such as the tools that are used to repair eyeglasses. In addition, in the course of a tour of the office you can point out in the storage room boxes of merchandise or other materials that employees are expected to lift and transport around the office to restock shelves. You also can point out when passing the maintenance closet that employees all take turns helping to clean the office at the end of the day. Pointing out these job requirements lets the prospective employee know the range of physical ability needed to fulfill their job functions.

By using detailed, non-discriminatory language in job ads and interviews, you can increase your chances of hiring a competent, long-lasting employee.

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Pamela Miller, OD, FAAO, JD, DPNAP,has a solo optometric practice in Highland, Calif. She is an attorney at law, holds a therapeutic license, is California State Board-certified to prescribe eye medications, and offers comprehensive vision care, contact lenses, visual therapy, and low vision services. To contact her: drpam@omnivision.com

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