B. Job Requirements

When preparing job criteria, do not set a higher requirement than is needed for the job simply to attract a better caliber of applicant. The reason is that you may be inadvertently discriminating against a particular class of applicant. As a result of cultural obstacles and discriminatory educational practices, older applicants, women and persons belonging to minority groups may be affected unfairly by job standards based on a level of educational achievement. Courts and anti-discrimination agencies insist that educational requirements be related to the successful performance of the job at hand.

Counsel Comment #3: Be sure that all requirements are directly job-related. Avoid denying employment to persons who lack formal education credits or requirements when education is not relevant to the job skills sought. Choose the person with the best demonstrated skills for the job to avoid problems in this area. Recognize that it is not sufficient to show a lack of discriminatory intent if your company's selection process discriminates against one group or class of applicant over another.

Age Discrimination

Courts are aware that age discrimination is often difficult to prove by direct evidence. That is why, at the start of a case, the plaintiff is allowed to benefit from an inference of discrimination simply upon proof that the employee was in a protected age category (e.g., over 40) and that he/she was refused a job that was then given to a younger person with no better credentials. The burden then shifts to the employer to produce a nondiscriminatory reason for the person's non-hire, following which the applicant has the burden to demonstrate that the proffered reason was a mere pretext not to hire the aging employee.

Counsel Comment #4: Instruct all personnel in charge of hiring never to tell or admit to an older applicant that they "lack formal education credits," "are overqualified," "are overspecialized," or that the company is "looking to hire someone with a more recent college degree." Recent cases demonstrate it may be illegal to refuse to hire an older applicant by successfully arguing that being overqualified for a position means the person is unqualified for the position. Be sure that such words are never directly mentioned to the applicant or placed in memos written after the applicant has left the interview.

TIP: Simply showing that a younger individual was hired over a qualified older applicant does not prove age discrim- ination if the employer can show the decision was based on an honest evaluation of the candidate's qualifications (e.g., the prospective employee would be bored or likely to leave upon finding a better job, or both). Furthermore, an employer is under no obligation to provide a laid-off employee with a job for which that person is overqualified.

Disabled Applicants

Scrutinize all job requirements to ensure that your company is not inadvertently screening out qualified disabled applicants. Under the ADA, an employer may deny a job to an individual with a disability if the individual fails to meet a selected criterion under the Act. However, it is unlawful to exclude applicants with disabilities and fail to hire them if the criterion can be satisfied by the applicant with a reasonable accommodation by the employer. According to the Senate Labor and Human Resources Committee, which was responsible for drafting the bill:

Suppose an employer has an opening for a typist and two persons apply for the job, one being an individual with a disability who types 50 words per minute and the other being an individual without a disability who types 75 words per minute. The employer is permitted to choose the applicant with the higher typing speed.

On the other hand, if the two applicants are, one, an individual with a hearing impairment who requires a telephone headset with an amplifier and the other, an individual without a disability, both of whom have the same typing speed, the employer is not permitted to choose the individual without a disability because of the requirement to provide the needed reasonable accommodation.

Counsel Comment #5: A disabled applicant can only be rejected if the person cannot perform essential job functions, even with reasonable accommodation. However, your company must avoid setting too high a standard of job requirement which purposely or inadvertently excludes qualified but dis- abled or handicapped applicants.