Experience, education, ability, and language fluency may be considerations when you are defining your job qualifications. Employers, particularly those who employ 15 or more, must be careful not to run afoul of federal or state anti-discrimination laws during this process.
When hiring an employee, you want to be as certain as possible that you're hiring the right person for the right position. The first step towards reaching this goal is determining what you need in an employee via a job analysis. Once that step is completed, you will know what skills and areas of knowledge are needed for the open position. The next step is to use the information to determine your job qualifications.
In defining your job qualifications, you should consider the following:
- English language ability
- physical effort ability
It's almost certain that you'll need to keep at least a few of these qualifications in mind as you review applications and interview people for the job.
Once you have a handle on what you want in the way of qualifications, you can use the results to create a job description.
In most cases, the ideal candidate will have at least some exposure and experience in the areas that the job entails. Sometimes it is difficult to find individuals with just the right experience, especially if your industry is specialized or relatively new.
When creating experience requirements for a position, you can demand specific experience, but that may make it more difficult to find anyone to fill a position. You may want, instead, to consider making the experience requirement broader, especially for entry-level positions.
Example: You need a receptionist who can not only answer multiple phone lines but who also has some computer skills and solid organizational skills. If you require experience of at least one year of working in an office receptionist position you will limit your pool of candidates, more than likely, unnecessarily. Consider instead, making the experience requirement broader, as in one year of experience in a high-pressure, multitask environment. This broadened experience requirement could include someone who worked at the customer service desk in a department or super store or a host or hostess at a popular, high-volume restaurant who might have some of the same set of skills and abilities.
The important thing is not to define your experience qualifications so strictly that people who could do the job are disqualified.
Warning: If you have 15 or more employees, or are planning on hiring your fifteenth employee, you are subject to federal employment laws barring discrimination. In this case, you should make sure that any experience requirements you set out are business-related and not discriminatory toward any protected group (i.e., race, color, ethnicity, national origin, religion, gender, age (over 40), disability or veteran status). For example, you cannot require that applicants for a certain job be of a certain race or color, unless you have a justifiable business reason for this requirement. Be forewarned that these exceptions are quite rare and are scrutinized closely by the courts.
Also, be sure to check your state's employment discrimination laws because many states have laws which apply to employers with one or more employees.
Education requirements are as varied as the positions and the people that fill them. Some employers require at least a high school degree or an equivalency certificate as a starting point for jobs they fill. Some jobs require more advanced thought and responsibilities and, therefore, may require more advanced education.
When you determine job qualifications, make sure that you focus on the applicant's ability, not just the degree. After all, there are plenty of people who have degrees but do not have the skills to do a specific job.
It's important to remember that education doesn't necessarily come from a traditional academic setting. Training that a person may have received from a part-time job or an internship or previous employment may also be considered education. People sometimes have hobbies or other interests outside the scope of their employment that may cause them to take classes at a local junior college or at a community center. Be sure to keep these in mind as you write education requirements for your positions. Knowledge comes from many sources and you want to tap into as many of them as possible.
Tip: Employers of 15 or more, subject to federal anti-discrimination laws, should be aware that some lawyers and consultants in the field of employment discrimination advise dropping all degree requirements, relevant or not, because they invite discrimination claims. However, the Equal Employment Opportunity Commission (EEOC) says only that employers can't set educational requirements so high that they tend to restrict certain protected groups of people from getting hired or promoted.
Take the safe road and focus on skills, not on a piece of paper. If you do require a degree or level of educational attainment, be prepared to justify why the degree itself is a necessary requirement as opposed to an ability.
For example, high school graduation requirements for applicants have been found discriminatory when applied to positions that do not require that level of knowledge. So while it may be necessary to read in order to perform the duties of a certain job, it might not be necessary to have graduated from high school to have acquired the necessary reading skills.
Ability as a job qualification
Judging ability is tricky. Sometimes ability is an innate, personal trait, and other times it is a by-product of education or experience. In considering abilities necessary to perform a job, be sure to separate abilities from educational requirements when applicable:
- When ability is related to education. In some instances, ability is related to education, and only after a certain amount of education does a person have the ability to perform certain tasks. Consider lawyers and accountants. Generally, they must have an advanced degree and be certified in the state where they practice. Their ability to perform their duties is a by-product of their education and certification.
- Ability unrelated to education. But sometimes, ability is not related to a specific educational attainment. Some people are natural-born communicators, for instance, and they tend to deal with people well. They can communicate easily and can develop a sense of rapport with people that makes people want to deal with them. This is a wonderful quality in a salesperson or an office receptionist. It is not something that is necessarily a product of education.
When you consider abilities, look not only at those that come from education, but at those that are desirable or necessary personal traits for the particular position.
Warning: If you are subject to federal or state anti-discrimination laws, be sure that the abilities you include in your job description are not discriminatory by requiring abilities that would keep a certain racial, gender, ethnic, or religious group from being hired, unless the ability is a bona fide occupational qualification of the job. What is a bona fide occupational qualification? A bona fide occupational qualification is when a person's religion, gender, or national origin is reasonably necessary to the normal operation of that particular business or enterprise.
For example, a religious school teacher may be required to be a practicing member of the religion being taught. However, this does not mean that you can have religion-based, gender-based, or national origin-based differences in pay for those holding the same job.
As with all skills and abilities, language fluency must be related to the performance of the job in order to be a legitimate job requirement. Note that this doesn't mean that it is just desirable to have proficiency in the language; it must be an important part of doing the job.
Warning: If you have 15 or more employees and you require language fluency, you must be able to prove that it is an important and necessary part of the job because federal law requires that you not discriminate against protected groups, including groups whose ethnicity, national origin, or race may be the reason they have limited English language skills. Note that some states have language fluency discrimination laws that cover employers with one or more employees.
A policy of refusing to hire applicants with "poor grammar" as computer programmers was determined by one court to be unlawful bias since the employer was unable to show a business reason for requiring programmers to have good grammar skills.
However, in another situation, a hotel room attendant's denial of a promotion to a front office cashier position was justifiable since a greater English proficiency was necessary for successful job performance in the front office.
Physical effort or abilities
Some jobs may require certain physical abilities or strengths. These requirements should definitely be a part of your defined job qualifications. Making sure that employees are able to perform the necessary physical requirements of your job will not only help them do the job better and more efficiently, but it will help you avoid problems with claims and safety compliance.
Americans with Disabilities Act. If you are an employer of 15 or more employees, you are subject to the Americans with Disabilities Act (ADA). The ADA and the ADA Amendments Act (ADAAA) are federal laws that protect people with disabilities from being discriminated against in all aspects of employment.
Generally, the basic tenets of the ADA as far as job qualifications are concerned, hold that if an employee can do the essential functions of a job with reasonable accommodation, then the employee should not be discriminated against in the hiring process or other employment practices.
How do you define an essential function and a reasonable accommodation? Guidelines exist as to both:
- Essential functions. Essential functions should describe the outcome of the job, not how it is performed.
Example: A job requires an employee to pick up boxes weighing approximately 25 to 40 pounds when they come in on company trucks and move the boxes from the trucks to the warehouse. The essential function of the job is to move the boxes from the truck to the warehouse area. The essential function can be accomplished through use of a dolly, hand truck, or cart.
Can the job description for this position include the ability to lift and carry boxes up to 40 pounds as an essential function? The answer is no. Why? The essential job function is not lifting the boxes and carrying them. The essential job function is moving up to 40 pound boxes from the trucks to the warehouse area. Therefore, a job applicant with a back problems who can't carry heavy boxes would be capable of performing the essential functions of the job, if a dolly or hand truck, or other means were provided.
- Reasonable accommodations. Reasonable accommodation is a technical concept defined by the ADA. Generally speaking the accommodation must first be requested by the employee, at which point you must discuss the individual's disability with him or her and determine what accommodation you will provide. Whether an accommodation is reasonable also turns on the cost of the accommodation in relation to your business's size and profitability.
Be aware that you may refuse to hire applicants who pose a direct threat to the safety of either themselves or others if there is no reasonable accommodation that would either eliminate or reduce the significant risk.
Tip: If you suspect you may need to provide reasonable accommodation to an applicant with disabilities, check with your attorney as this can be a complex area to navigate.
When physical fitness or special standards of physique are needed for the job, reliance on a physical ability test as a part of the applicant screening process is the best protection against unsafe and inefficient performance.
The Equal Employment Opportunity Commission (EEOC), has specific information on its website to assist small business employers in complying with the ADA and the ADAAA.
Also available in the Business Tools is a job requirements checklist to help you determine the mental and physical requirements of a job.
Many states have anti-discrimination laws protecting applicants and employees from disability-based discrimination which apply to employers with as few as one employee. Be sure to check the law in your state.
Business necessity of job qualifications
Under federal law, for employers of 15 or more job qualifications are legal if they are job-related and a business necessity. So, if you have 15 or more employees and if the selection criteria you use tend to screen out members of a protected group (i.e., by race, color, ethnicity, national origin, religion, gender, age (over 40), disability, or veteran status), you can expect to run afoul of the federal EEOC for discriminatory practices.
What exactly constitutes a business necessity? The concept of business necessity has been narrowly defined by the courts. That is, when a practice is found to have discriminatory effects, it can be justified only by showing:
- that it is necessary to the safe and efficient operation of the business
- that it effectively carries out the purpose it is supposed to serve
- that there are no alternative policies or practices that would better or equally serve the same purpose with less discriminatory impact
You must be able to demonstrate that any job qualification, recruitment method, or selection procedure that has a "disparate impact" on groups protected by the law is job-related and that it can validly predict successful performance in the type of job in question. Disparate impact occurs when a policy that is fair and is applied fairly ends up discriminating against one or more protected classes of individuals.
Example: Paul's Pork Store required that employees who had contact with the public be bilingual in English and Italian. African-American applicants alleged that the bilingual requirement had an adverse impact on African-American applicants and employees.
The employer was able to defend the bilingual requirement as a business necessity since it was located in a community that was primarily Italian and the majority of its customers spoke only Italian.
If you can't demonstrate the business necessity, you must stop using that procedure or method or alter it in such a way that it is no longer discriminatory.
Warning: To protect applicants and employees from employment discrimination, many states have laws requiring a business necessity for qualifications which apply to employers with a single employee. If you don't have enough employees to subject you to federal laws, check your state's laws to be certain you are in compliance.
Finally, even if you can demonstrate that a procedure, requirement, or method is valid, you can't use it if there are other procedures, requirements, or methods that would accomplish the same goal and have less of a discriminatory effect.