Recruiters and hiring managers should be wary of asking certain, seemingly innocuous, questions during the hiring interview process.
For instance, a simple “Where are you from?” implies the hometown, state, region or national origin of an applicant matters in the hiring process. So even that ice-breaking question usually is off-limits.
With that in mind, we wonder: Are two high-profile local job searches – one by the Grand Forks United Way and the other by the State Board of Higher Education – on sound legal ground after both declared a preference on candidates?
Interim United Way CEO Phyllis Johnson earlier this week told the Herald the agency was most interested in applicants “from the Midwest.” And as the Board of Higher Education and Chancellor Mark Hagerott seek candidates for the next president of UND, they have declared their interest in a “North Dakota-centric search.”
Both United Way and Hagerott either are facing or have faced workplace lawsuits, although neither involved hiring practices. Could these searches prompt new legal troubles?
A lawyer who specializes in employment and labor law tells the Herald editorial board it’s unlikely, although she also called the question “interesting.” Lisa Edison-Smith of the Vogel Law Firm in Fargo said that, “as a general rule, I agree that (recruiters) don’t want to ask where (candidates) are from.”
Qualified candidates from, say, Canada, could claim an anti-Canadian bias, for example. Edison-Smith has seen that happen.
“It could be problematic if you have someone who is a foreign national who wants the job and is qualified. On its face, it looks like discrimination,” she said.
However, “I think it’s easy for the board to say it’s a non-discriminatory factor because we want someone with (North Dakota) ties for a lot of reasons – raising money, because they are more connected, or more likely to stay. In general, I don’t think it’s a good question to ask, but in that context, I don’t foresee it causing any problems.”
Edison-Smith calls it a BFOQ – bona fide occupational qualification.
So although Edison-Smith said this kind of hyper-focused search “could potentially get a (legal) charge,” any lawsuit probably wouldn’t be successful.
“With a state university, ties to the area are very important. I think you have a much better argument that it is a BFOQ and it is legitimate and not discriminatory,” Edison-Smith said.
That’s good. And for the record, the Herald believes the successful candidate for the UND presidency should have North Dakota ties. Of course, an outside party that isn’t involved in the hiring process can say that.
Meanwhile, here is some free legal advice for recruiters: Beware of this hiring landmine. Asking about hometowns or any other questions about origin could have legal consequences.
“In general, it’s not a good idea,” Edison-Smith said. “I have clients who hire a lot of minorities. You don’t want to suggest in your interviews that you are somehow giving preference to folks … who are more likely to be white Midwesterners. If you are hiring for an entry-level position, you would never want to ask that question.”