With the new year comes new hires — and the potential for employers to make costly mistakes during the interview process, said Michael A. Shadiack, chair of the Labor and Employment Group at Connell Foley in Roseland.
“The interview is where unconscious bias creeps in the most,” he said. “If I like me, and you’re like me, I’m going to like you during the interview. If I don’t like you, you won’t get the job, even if you’re the most qualified.
“Unfortunately, that’s just the way we’re wired.”
It is exactly this sort of behavioral glitch that has put plaintiff employment attorneys on the offensive, he added, with the laws regarding explicit bias, or discriminatory actions blatantly taken against another, having mostly been ironed out.
“There are a ton of examples of what you can and cannot do, and people in the workplace today generally know what they are,” Shadiack said.
That is why employment attorneys have now shifted their focus toward implicit or unconscious bias, he added.
“There’s not a lot of law out there — and these are not inexpensive claims to defend,” Shadiack said.
For example, if a manager is accused of failing to hire or promote an employee based on unconscious bias, the manager might negate the claim by revealing a business-related reason for their decision.
“But, now, that manager needs to defend themselves,” Shadiack said. “How are they going to prove that they are not unconsciously biased toward this employee? Both sides will need experts in litigation who will want to evaluate the manager psychologically, about what makes them tick, where and how they grew up, and more, to determine if unrealized bias played a role in their hiring decision.”
This process can be extremely costly and time-consuming, Shadiack added.
“It gives plaintiff employment attorneys leverage because they can now use these costs to try to negotiate a settlement early on in a case,” he said.
Shadiack said he therefore recommends all employers outline interview questions in advance before having them reviewed by human resources and legal.
“You want to make sure that you are treating every applicant the same by focusing on evaluating their abilities and not their disabilities,” he said. “Furthermore, be mindful of your facial expressions, body language and notetaking during the interview — all of which can reveal unconscious biases you may have toward a protected class.”
The protected classes include but are not limited to the age, gender, ethnicity, nationality and sexual orientation of an applicant. Potential employers also are barred from asking questions regarding one’s ancestry, familial status, marital status, political status, religion and religious observations, and, of course, mental or physical disabilities, genetic traits, medical and pregnancy statuses.
“Still, there are questions that my clients have told me they have asked during an interview — and have since been informed they are never to ask again,” Shadiack said.
It may seem obvious to many employers, for example, not to ask an older applicant how much longer they plan to work before retiring.
“But ‘When did you graduate high school?’ is problematic, too,” Shadiack said. “On its face, it’s a purely innocent question, because maybe you know people in common, but if they tell you when they graduated, now you might think that they’re too old or too young for the job.”
Instead, Shadiack recommended employers ask questions such as “Are you over the age of 18?” and “What are your long-term career goals?”
Employers may also not ask applicants about their familial status, including whether or not they have or plan to have children.
“I have pictures of my sons on my desk, and people sometimes comment on how handsome they are,” Shadiack said. “Now, because they just gave my family a compliment and I want to reciprocate and show interest in them, I might respond with, ‘What about you?’ But instead, I simply say, ‘Thank you,’ and move on to the next business-related question, because, if that person doesn’t get the job because they told me they were a parent or an expectant mother, they can sue me for discrimination.”
Similarly, an employer cannot ask where an applicant and their family lives.
“Maybe they live far away or maybe they live in an undesirable section of town,” Shadiack said. “You cannot even ask where they grew up.”
Asking a potential employee where they were born, how long they’ve lived in this country, what their native language is and whether they are a U.S. citizen are all illegal questions, too.
“However, employers can ask if an applicant is available to work overtime or travel on occasion; whether they are able to appear for work in accordance with the required work schedule; if they are legally authorized to work in the U.S.; and what languages they read, speak or write fluently,” Shadiack said.
Starting this month, it is also especially important for employers to remember that it is now illegal to inquire about an applicant’s previous salary, because women especially have historically been underpaid.
“If an employee tells us they are making $40,000, but we were willing to pay $70,000 before they said that, that’s discrimination,” Shadiack said.
Instead, employers may inquire what an applicant’s salary expectation is.
Finally, and perhaps most surprisingly, employers should not ask what job applicants do in their spare time.
“‘Tell me about yourself,’ is a common question,” Shadiack said. “But if an applicant tells you then that they volunteer for a nonprofit organization, and you don’t agree with it for whatever reason, that is unconscious bias.
“We care about what they do when they’re at work and that’s it — what skills do you have to offer this company? Do you have a degree related to this role? What is your prior experience in managing staff?”
However, it is OK for an employer to ask a job applicant if they are a member of a professional organization that is relevant to the available position.
Lastly, Shadiack recommends that employers not only outline and rehearse the interview questions with a third-party, but also plan a smooth closing.
“Simply let them know what the next steps are in the interview process and move on,” he said.
Social media screening
Searching the internet and social media for information on a potential employee can easily give you more access to the interviewee than typically available during the traditional hiring process, said Michael A. Shadiack, chair of the Labor and Employment Group at Connell Foley in Roseland.
But should you?
“You can legally make hiring decisions based on what you find, such as photographic evidence of illegal drug use, poor writing, grammar or communication skills, or publicized negative feelings toward a previous employer,” Shadiack said. “But you also can be sued for unlawful use.”
For example, if a company goes online, finds that a person participates in certain activities or organizations and then determines them an ill fit for their culture, that is discrimination, Shadiack said.
Furthermore, you cannot “un-ring the bell.”
“If I said to you, ‘Do not think of a white elephant,’ wouldn’t you?” Shadiack said. “It’s impossible not to see what you’ve already seen. So, if, during an internet search, you see a photo of an applicant in a wheelchair, you can’t get that out of your head — and they can then claim unconscious bias if they do not get the job.”
Still, there are some best practices to keep in mind when choosing to research an applicant online, Shadiack said.
- First, inform applicants up front.
- Next, have a uniform set of guidelines to follow and media sites to visit.
- Then, designate a non-decision maker to perform internet screenings.
- Remember, if you are going to perform an internet search on one applicant, you must conduct a search on all of them.
- Lastly, never “friend” applicants to gain access to private pages.
How unconscious bias is born
Humans are immediately socialized when we enter this world — and we carry into our professional lives all the personal things we learned growing up, Taryn Abrahams said.
“All of the judgments, attitudes, perceptions and stereotypes that have accumulated in our brains over the course of our lives, we bring with us to work, where they can affect our decisions and behaviors,” Abrahams, a corporate behavioral specialist and founder and CEO of Empower Behavioral Services, said.
Though immunity against such unconscious bias is impossible, it unfortunately can lead to disengaged and even hostile work environments, rife with harassment, discrimination, high turnover and a complete lack of innovation.
But all is not lost, Abrahams said.
“The goal is to move unconscious bias into conscious awareness, inclusion and action,” she said.
Many studies show unconscious bias contributes to a lack of diversity in the boardroom and executive suites.
“Perhaps that is one reason why manager and senior executive roles in the private sectors are still 86% white and 70% male,” Abrahams said.
Unconscious bias can be extremely costly to companies, Abrahams added. Still, this knowledge can be used to implement the right kind of training to begin recognizing and addressing unconscious bias.
“Implicit association tests and surveys, such as Harvard University’s Project Implicit, can be a great resource for an organization to help make employees more aware of their own unconscious biases,” Abrahams said.
But this difficult work must extend far beyond education and training to make a real dent, she added — especially for business leaders.
“Start with your own leadership to develop a culture that models the kind of behavior you want employees to emulate,” Abrahams said. “If the retention rate at your company is low, begin by asking, why? What are the patterns?”
Lastly, Abrahams said that the work to address unconscious bias cannot be done alone.
“When putting teams together, be sure to mix it up,” she said. “Make it random. People like people who are like them, so we automatically go to those most familiar and comfortable — but that is not where innovation and collaboration thrives.”
Not only will this increase inclusion and diversity, but also it will help to combat “group think” or community bias.
“If you can get your team to disagree with each other in constructive ways, that is actually positive and powerful,” Abrahams said.