In theory, hiring a household employee should be straightforward: you figure out who you want to hire, check their credentials, and pretty soon, you have the help you need. However, there are hidden legal landmines that are critical for any hiring manager to look out for. According to Equal Employment Opportunity Commission (EEOC) data, job candidates in the United States filed 5,337 discrimination suits related to hiring processes in 2021. As the economy reopens and more people are available for work, the number of lawsuits related to hiring is sure to rise. Unfortunately, even lawsuits without merit or ones based on good-faith efforts to hire equitably can still be time-consuming and extremely costly.
No hiring manager wants to answer the door when the EEOC comes knocking, so the most helpful thing you can do to reduce the likelihood of these claims is to check for vulnerabilities in your hiring process before you start meeting candidates. Check out these four best practices for hiring household employees, protecting yourself against EEOC claims, and ensuring that your hiring practices are both sound and fair.
4 best practices for hiring household employees
1. Draft a job description in advance
The benefits of a written job description are threefold. It will…
- Help you think more objectively about the skills your ideal candidate will have, thus guiding you away from decisions influenced by unconscious bias.
- Assist candidates in assessing whether or not your position is a good match for them, which cuts down on unqualified applicants and saves you time.
- Open up conversations around potential accommodations that you may be required to offer under the Americans with Disabilities Act (ADA). Make sure to have “bona fide occupational qualifications” (BFOQs) provided in writing before hiring. If your open position requires certain physical demands (such as carrying a certain weight, lots of bending and lifting, using a certain type of machinery, etc.) then you’ll want to note those, too.
It’s also helpful to know your local employment laws, since many states and cities are passing acts that require employers to provide certain information in the job posting. For example, employers in California must provide a pay range in the job listing, and cannot require that candidates provide their salary history. These laws, as well as many others (such as statewide overtime laws, local minimum wage, state-required benefits such as paid sick leave, etc.) can greatly affect what information will need to go into your job description and job posting.
2. Create a hiring rubric and set of interview questions – and use them for every candidate you interview
A hiring rubric may sound daunting, but it doesn’t have to be complex: a chart with the required job duties and a ranking of how well the candidate’s experience matches up with those needs should suffice, but there are plenty of templates available online. Think carefully about what you’ll want to check for during the interview, and take detailed notes so you can remember everything later. You should also ask the same interview questions of each candidate to help ensure you’re treating everyone equitably and don’t get tripped up by unconscious biases during the interview.
Writing down your interview questions in advance and using the same rubric for everyone will give you two advantages:
- The intentional objectivity helps create documentation of your process, which may help fend off claims of hiring discrimination if you ever need to prove that you assessed everyone equally.
- It helps you keep your eye on the prize and out of the courtroom: you’ll hire someone who can do the job best, not someone who, for example, looks like a person who you think would normally be best for the job.
3. Understand anti-discrimination laws
The Age Discrimination in Employment Act (ADEA), ADA, Title VII of the Civil Rights Act of 1964, and the EEOC all contain anti-discrimination laws that affect what hiring managers can and can’t do during the hiring process. The special demographic qualities in these laws are referred to as “protected classes,” and knowing them is critical to ensuring you’re doing the right thing when hiring.
These laws can feel complex for even the most seasoned HR pro, but violating any of them could mean that you lose six-figures in a settlement while making an employment lawyer very happy. To avoid this, know your no-go’s before you sit down with the candidate. When it comes to protected classes, an ounce of prevention is worth more than a pound of cure.
Claims of discrimination based on disability, sex and gender, race, and age comprise a majority of the EEOC claims having to do with hiring processes. You may already have a sense of these regulations and know that the safest step is not to ask about any of those, but these protected classes can show up in unexpected ways.
Here’s an example:
Asking about whether or not someone is pregnant, plans to become pregnant, or even if they have kids could be considered sex discrimination or discrimination based on familial status. When it comes to age, the ADEA generally only applies to candidates above the age of 40, but some areas have passed specific laws protecting candidates in other age groups. Protection of candidates with disabilities even extends to disabilities a candidate’s loved ones have, or people who have “perceived” disabilities. If you don’t hire someone because you suspect they might have a disability that would stop them from performing the job effectively, that could still be illegal – even if you never asked them about it.
Other classes that are protected by either federal or local laws include a candidate’s religion, national origin or ancestry, genetic information, sexual orientation, and veteran status. Additionally, many cities and counties have passed ordinances that add different groups to this list of protected classes.
Additionally, social media is increasingly playing an important – and potentially dangerous – role in hiring discrimination lawsuits. HR experts advise against looking for a candidate’s social media profile. Why? Because even if you find the right person, it might lead you to discover information about their protected classes that could illegally affect your hiring decision. Moreover, posting the position on social media may mean that you’ll be asked to “target” your post to certain demographic groups that use the social media platform. It may seem innocuous and like a great way to filter out unqualified candidates, but it can quickly lead to allegations of hiring discrimination, disparate treatment, or disparate impact. To be safe, ensure that your job ad is visible to everyone: you can sort through applicants using your objective criteria later, but you’ll want to ensure that everyone has a fair shot at applying in the first place.
In a society growing more comfortable with speaking up about sexual harassment and discrimination, it goes without saying that a good hiring manager will ensure that all candidates are treated equally regardless of their gender, sex, appearance, etc. The guidance here is simple:
- Don’t comment on a candidate’s appearance, body or weight, attractiveness, etc.
- Don’t ask them on a date or tiptoe into inappropriate conversational topics.
- Don’t attempt to negotiate anything that would violate quid pro quo sexual harassment laws. States have begun passing their own anti-harassment laws that have loosened the definition of sexual harassment, and no hiring manager will want to be on the receiving end of those claims.
It might sometimes feel like there’s nothing that’s safe to ask a candidate about, but these restrictions help keep the focus on a candidate’s experience, skills, and objective likelihood of performing well at the job. To combat any potential for allegations of discrimination, some hiring managers find it helpful to plan out “small talk” topics in advance of meeting a candidate – things like the weather, weekend plans, sports, or pets can feel friendly but safe, and are unlikely to naturally steer the conversation toward revealing info that might lead a candidate to think you’ve discriminated against them.
Prepare in advance and be mindful of the details
Small comments can often be misinterpreted and leave a different impression than you may have intended, especially by someone who has their application rejected and might be grasping for reasons why they weren’t picked for the job. To close the door to the possibility of a lawsuit, try your best to not let any information related to protected classes arise, but if it does, make sure you know what to do. Leaning on your written materials, objective standards, and pre-planned hiring process can help ensure that everyone is treated equitably throughout the interview process regardless of their demographic qualities.
4. Know your background check, work eligibility, and identity verification laws
If you’re inviting someone to work in your home, it’s natural that you’ll want to ensure that they are who they say they are, and that they’re safe to be around. However, there are an increasing number of unique state laws that address the background check process, and they interact with the federal Fair Credit Reporting Act (FCRA) regulations in complex ways.
First, you’ll want to make sure that you’ve received informed consent from job candidates to check their criminal and motor vehicle background reports – it’s often safest to do this after a job offer has been made, otherwise it can legally be construed as an offer of employment. You’ll also want to apply your background check standards equitably: if you run a check for your household’s driver but not for your child’s tutor, the driver could easily claim that there’s something about the driver’s protected class that caused them to be regarded with extra scrutiny. The same goes with verifying U.S. work eligibility and examining identity documents: if you engage in a particular hiring process for one person, the best way to combat potential discrimination claims is to apply those same standards to all employees.
But wait – what if something concerning comes up on a candidate’s background check? Depending on where you live, your discovery might not be a legal reason for declining to hire someone. Some states, such as California and Illinois, have recently addressed this conundrum by providing a checklist that employers must follow when considering a candidate with a criminal history. Laws like the ones in those states aim to ensure that qualified candidates aren’t excluded from future employment because of past misconduct, but they can be especially tricky to navigate alone and will likely result in a surge of discrimination claims in coming years.
Did you know?
Almost 200 states, counties, and cities have passed “ban the box” laws or other ordinances similarly aimed at giving job applicants with criminal histories a fair chance to advance through the hiring process before their backgrounds are revealed. Some areas have even made it illegal to consider certain types of crimes, such as marijuana-related offenses in areas that have now legalized medical cannabis.
The bottom line when it comes to background checks is that it’s always safest to consider the nature of the offense in the context of the job requirements: if a candidate will be handling your checkbook, then no one would blame you for not hiring someone who has committed financial crimes. You probably also wouldn’t want to hire a driver with a suspended license and a history of DUI charges.
However, if the crime was long ago or unrelated to their job duties then it cannot have any legal bearing on your hiring decision. Ensuring that you have a candidate’s consent to check their background after you’ve made an offer, and that you take your findings back to them for a discussion about your discovery – armed with knowledge of what you can legally do with that information – is key to keeping you safe from employees who might endanger your home or your family.
Transform your household hiring process from cautious to confident
Hiring the perfect household employee can be a difficult process, but it doesn’t have to be made an expensive or stressful one. Keeping these tips in mind will help limit your exposure to any potential discrimination claims, and ensure that you’re giving everyone an equal opportunity to help make your life easier.