Discrimination Isn’t Always Intentional

Your hiring process might be discriminatory even if you don’t intend it to be. The law doesn’t just look at whether your questions are explicitly biased—it looks at whether the outcomes are discriminatory. If your screening process filters out applicants based on unfamiliar-sounding names, that’s a discriminatory outcome regardless of intent. The larger your company, the more scrutiny your process will receive.

Drug Testing and Background Checks

If your hiring process includes drug screening, check your state’s laws carefully. Each state has strict rules about what you can test for and when. An applicant struggling with a condition like substance abuse may have legal protections. You need someone who can do the job safely—but you also need to respect their rights under your state’s employment laws.

Background checks follow similar rules. For positions working with children, it would be irresponsible not to run one. But many states require specific procedures, written consent, and disclosures. Get the process wrong, and you expose your company to liability.

Focus on Expectations and Core Values

The strongest legal protection in hiring is also the best business practice: build your process around clearly defined expectations and core values. When your interviews focus on whether a candidate aligns with your mission and can meet specific job requirements, you naturally reduce legal risk while finding better fits.

Work With an Employment Attorney

Employment laws vary significantly by state. If you’re using any form of screening, testing, or background checks, have an employment attorney in your state review your process. A small investment in compliance now prevents large risks later.

Video Transcript

Focus on Expectations and Core Values

Hiring is one of the most important ways to keep the wrong people out of your company. Thinking about what the expectations are in the company, what your core values are, and being able to have conversations around that so that you can identify which people would fit well with your values and your sense of mission and the way you operate.

Avoiding Discrimination in Interview Questions and Outcomes

There are a lot of books on that, but I am going to stick to the legal pieces here. The one thing that is really important is when you screen applications or you interview people, obviously, you can’t have questions that are discriminatory in nature, but the law also looks at whether the outcome of the questions you have are discriminating against people.

For example, if your process doesn’t specifically say, “Oh, we are going to screen [00:01:00] against a particular ethnicity.” But you have a process which looks at people’s names and screens out people based on names that are uncomfortable or uncommon to the hiring manager. That would be a process that, although it may not be intentionally discriminatory, it has a discriminatory outcome. And so the larger the company you are, the more important it is that you have careful processes in place that do not discriminate against applicants for any reason that is illegal in your state or in the US.

Understand State Laws Around Drug Screening

For some jobs, the employer considers drug testing. If that is you, you will want to check with your state laws regarding whether you can screen applicants based on drug testing and whether you can even do some sort of drug test [00:02:00] as part of your hiring process. Each state has strict laws in this. The difficulty is what sort of chemicals are you testing for, and are you discriminating against somebody based on perhaps a condition that they have? For example, if they are struggling with alcoholism, let’s say, or they are struggling with substance abuse.

Rights of Applicants With Health Conditions

They have certain rights in some states. And so you don’t want to infringe their rights, but obviously you do want to make sure you are hiring people who can do the job in a safe manner. So if you are looking at using any sort of screening or testing for drugs or alcohol or some other behavior, that is where it is important to work with an attorney in your state who is very familiar with your state’s employment laws.

When Background Checks Are Necessary

Similarly, you may want to [00:03:00] do background checks for the position that you are hiring. Some positions, like those working with children, it is irresponsible not to do a background check to see if a person has any sort of criminal history or other history that would make them a risk to children, for example.

But there are often strict state laws related to how you can do background checks, what sort of notice or consent you have to get, and the strict processes for that. The whole idea behind these states’ laws is to protect the rights of the employee who is applying for the position. And so some states like Minnesota have specific state statutes.

Background Check Services May Help With Compliance

So it is important to be on the lookout for that and work with an attorney or at least research those rules before you proceed with doing a background check. Often if you are working with a [00:04:00] background check company in your state. The company itself will know the state procedures and make sure that you are following them so that their company doesn’t get into trouble.

Setting Policies Against Harassment and Discrimination

Another important first policy to establish in your company is a policy against harassment, discrimination, and retaliation. Harassment would be something like sex harassment, some sort of inappropriate sexual contact, or sexual comments. Discrimination. That is discriminating against somebody because of the category or classification they are in.

Retaliation Protections for Employees

And then retaliation. A retaliation policy quite simply says this: “If you report improper conduct in the company, the company will not retaliate against you, and the company will not tolerate [00:05:00] any other employees retaliating against you.” That is an important assurance for an employee in a company, so all employees know that if anything improper has occurred, they can report it without being retaliated against. They will be protected.

Work With an Attorney on Employment Law

Aaron Hall: am Aaron Hall, an attorney for business owners and entrepreneurial companies. It As I always say, before you rely on any of this, consult with an attorney. It is my hope that you use these questions to identify topics and questions to bring up with your attorney. I hope you are doing well. Take care.