The EEOC has proposed new regulations to enforce the expanded version of the Americans with Disabilities Act passed last year. They’re going to have a big impact on many HR functions, including hiring.

Long story short: With a broadened definition of “disability,” more job applicants will be covered by the law.

As before, a disability’s defined as a condition that substantially limits a major life activity.

But instead of the old “eating, sleeping and working” that courts were used to, the new regs expand protection with a huge list of activities covering everything from caring for oneself and performing manual tasks to concentrating and communicating.

How HR can prepare

The following steps will help HR any new legal landmines created by the regs:

1. Train hiring managers – With more applicants considered disabled by the law, it’s more likely than ever that an unsuccessful candidate will sue for disability bias. Managers need to stay clear of interview questions that touch on health issues.
2. Review job descriptions – Seemingly innocent wording could be thought by courts to exclude to people with disabilities. A company could get in trouble, for example, if a job description lists a specific lifting requirement for a position that involves lifting only occasionally.

Remind managers: The law doesn’t, and never did, require you to hire anyone who’s unqualified. But with new opportunities for people to sue, it’s important than ever to keep the hiring process focused on the applicant’s ability to do the job.

To read a summary of the new regs, click here.

That’s the lesson sure to be learned by a Tennessee auto parts supplier that’s currently fighting two disability discrimination lawsuits.

In the most recent case, brought by the EEOC, the agency is arguing the company tested for legal prescription drugs such as painkillers. According to the suit, the company fired or refused to hire people with “disabilities” (their prescriptions) and failed to keep information learned from the tests confidential, in violation of the Americans with Disabilities Act (ADA).

A previous suit was filed on behalf of seven employees by one worker who suffered from chronic back pain, depression and bipolar disorder, was fired after testing positive for “certain chemicals” (her prescription drugs).

She’d never been cited for safety violations, and, she’s arguing, the medicine didn’t affect her ability to work.

Courts will normally let companies use prescription medication as a reason not to hire someone only when there’s a reasonable belief it’ll affect the candidate’s work or cause a safety risk.

We’ll see what the judge says this time.

Cite: EEOC v. Dura Automotive Systems, Inc. and Bates v. Dura Automotive Systems, Inc.

When a plant manager job opened up at a dry-ice producer, the boss hand-picked a replacement — a white male employee — from within the company. The vacancy wasn’t posted, and no applications from other interested employees were taken.

When an African-American employee found out about his co-worker’s promotion, he complained. The promoted employee had only been with the company for three years, while the African-American worker had 15 years of experience in the plant. He said he was more qualified than the new plant manager.

When the complaints were ignored, he took them to the Equal Employment Opportunity Commission, who filed a lawsuit on his behalf. Failing to have the case tossed, the company agreed to pay $40,000 to settle.

Cite: EEOC v. Airgas Carbonic, Inc.

Though bias against caregivers isn’t illegal in itself, most cases are brought under sex discrimination law — for example, companies can get in trouble if they hire fathers for upper management positions but not mothers.

The EEOC recently published a list of best practices for avoiding caregiver bias.

The biggest recommendations: Train managers. Point out stereotypes that can result in legal trouble, such as assuming mothers miss a lot of work, or that men don’t need time off for childcare duties. List actions to avoid, such as:

1. asking female applicants (but not men) about their family situations
2. steering women with family duties to lower-responsibility jobs, and
3. denying male employees’ requests for time off related to caregiving duties.

Additionally, stress not only the relevant legal issues, but also point out that hiring based on stereotypes prevents the company from acquiring the best possible employees.

Read all the EEOC’s guidelines here.

Requiring all employees to be fluent English speakers.

In 2008, the EEOC received 204 complaints of national origin discrimination based on English-only policies. That’s up from 125 in 2006 — a 63% increase. Comparatively, national origin discrimination claims in general increased just 27% in that time.

More claims are being filed, but does that mean language policies are always discriminatory? No, it doesn’t. According to the EEOC, English-speaking requirements are fine if they’re based on a business necessity.

For example, a policy would be OK if:

1. the employee frequently communicates with customers or co-workers who speak English
2. the policy is needed so employees can work together safely, or
3. it’s necessary to facilitate communication between managers and employees.

On the other hand, requiring employees to speak English during breaks or requiring English proficiency for employees without much need to communicate could get a company in trouble.

In 2008, the number of discrimination claims filed with the EEOC reached a record of 95,402, the commission announced recently. That’s up 15% from 2007.

The area of sharpest increase: age bias complaints. About 24,500 of those were filed in 2008, up 29% from 2007.

Of course, the increase isn’t simply because companies have ramped up discrimination against older workers. Experts say it’s likely more older workers are being laid off and are having a hard time finding new jobs.

But as the number of claims increase, its more important for managers to avoid giving the impression of bias to job candidates and employees.

Bias complaints from rejected job applicants are on the rise, and the EEOC is cracking down on unintentional discrimination in employers’ hiring practices. Here’s how HR pros can keep their companies safe.

This year, the EEOC has several new laws to enforce and a mission to ramp up enforcement in existing areas, says Peggy Mastroianni, associate legal counsel for the commission, who spoke at a recent Society for Human Resources Management conference in Washington, DC.

Here are the four EEOC priorities for this year that will have the biggest impact on hiring processes, according to Mastroianni:

1. Background checks – According to the EEOC, policies against hiring convicted criminals can be discriminatory, because minority applicants are more likely to have criminal records. The commission is continuing to crack down on the unnecessary use of criminal background checks.
   How to prepare: Review all of your company’s selection procedures, making sure they’re necessary and related to the positions they’re being used for. Courts have held that criminal records can be used if there’s some connection between the type of conviction and the position being filled.
2. Ledbetter Fair Pay Act – The EEOC is expecting a big increase in pay discrimination claims because of the recently passed Ledbetter Fair Pay Act, which gives employees more opportunities to sue if they feel their paycheck’s taken a hit because of illegal bias.
   How to prepare: Review policies on how salaries are set (and make sure managers follow them), identify and correct unexplained pay discrepancies, and make sure documents related to pay are retained.
3. Religious discrimination – The EEOC has been active in pursuing complaints of religious bias and failure to accommodate religious beliefs. These types of suits are especially tricky for employers because courts almost always side with employees if there’s a question of whether their beliefs are genuine.
   How to prepare: Religion bias claims often arise when applicants or new hires tell a manager about a scheduling conflict due to religious services or holidays. Hiring managers need an idea of what’s a reasonable way to accommodate one of those requests.
   
4. The new ADA – One of the biggest employment law developments of 2008 was the passage of the ADA Amendments Act, a law that significantly expands the definition of “disability” and offers protection to more employees and job applicants.
   How to prepare: The new law doesn’t change employers’ obligations to accommodate disabled employees. But since the coverage is greatly expanded, it’s more important for hiring managers to be trained on following the law. They need to understand the difference between essential and nonessential job functions and avoid making assumptions about a candidate’s ability to perform.
   

Referrals are one of the most trusted and time-tested ways to recruit new employees. But a recent court ruling offers a warning to any companies that use them:

An African-American man applied to be a truck driver in Wal-Mart’s delivery fleet, but was rejected.

He sued the company, claiming its hiring practices for truck drivers unfairly screened out minority applicants.

Wal-Mart’s truck drivers were recruited “almost exclusively” through a referral program. All current drivers were given cards to hand out to anyone interested in getting a job. The cards listed minimum qualifications and a number to call to get an application.

In addition to finding candidates, current drivers were also heavily involved in the interview process. Applicants who passed an initial screening were interviewed by a panel of employees who chose which applicants to send to the hiring manager.

The rejected applicant claimed the mostly white workforce was only recruiting and hiring white applicants. He found some statistics to bolster his case: Though African-Americans make up 15% of all U.S. truck drivers, only 8% of Wal-Mart’s drivers were African-American.

Wal-Mart argued there was no intentional bias. But the court said it didn’t matter, citing other decisions that ruled a referral program can be the source of accidental discrimination.

The judge let the case move forward as a class action lawsuit (Cite: Nelson v. Wal-Mart Stores, Inc.).

Should you scrap referrals?

Relying too heavily on referral programs can lead to costly problems. In another case, nearly all of a company’s new hires were referred by current employees. The result: Most new hires were white.

After failing to have the case tossed, the company settled for $2.5 million (Cite: E.E.O.C. v. Carl Buddig & Co.).

Does this mean companies should stop asking employees for referrals? Of course not. When done correctly, referrals are still a legal, cost-effective way to recruit.

The EEOC recommends companies keep track of which groups a referral program brings in and scale down their reliance on that strategy if the results look biased.

Frank Bruno, a 55-year-old with 25 years of experience in HR, applied for an HR director position at Unitek U.S.A., a communications firm in Blue Bell, PA.

He almost got the job, until he reached one final interview with a top company official.

One of the questions posed: “How old are you, 78?”

Bruno tried not answer, but after he was pressed, he told the exec his age.

He didn’t get the job — a 36-year-old woman with 11 years of experience was hired instead. Bruno filed a complaint with the EEOC, which is now suing the company for age discrimination.

The case is still pending. But given the explicit age-related questioning, it looks like Unitek will have a tough time winning this one.

A company hires two candidates for similar positions, one male and one female. The male candidate bargains to get a higher salary, while the woman accepts the original offer. The pay difference is legal, right? Not necessarily, according to a recent court ruling.

Companies are allowed to offer male and female employees different rates of pay as long as it’s due to a “reasonable factor other than sex,” according to the EEOC — such as prior experience, education and bargaining skills.

But the key: making sure salary negotiations are handled consistently. Many companies have been hit with lawsuits because of managers who were willing to bargain with one group of candidates and not another.

In one recent case, two women sued their employer because they were paid less than a male employee in the same position.

The company claimed the male employee received a higher salary because he negotiated for it. After he was hired, he told his manager he was offered two jobs at other companies and used those offers to bargain for a raise.

But the women won their case. Why?

They both tried the same strategy to negotiate for higher pay. The manager’s response: “We don’t play that game.”

Therefore, the court ruled, the company violated the Equal Pay Act by treating men and women differently when it came to salary negotiations. The company eventually settled the case for $180,000 (Cite: EEOC v. EGS Electrical Group, LLC).

Keep managers consistent

As this case shows, it’s up to HR to make sure all managers stick to consistent salary negotiation procedures.

Some more guidelines from the EEOC:

• Education, experience or training may justify a difference in pay — but only when they’re directly related to the job.
• Though some courts disagree, the EEOC states that prior salaries alone can’t justify a wage difference, because a woman may have been paid less in past jobs because of gender bias.
• Of course, the same rule of consistency applies to merit-based raises and other pay increases.