“Feelings are important here, because I have to feel safe at work.”

In episode #95 of Mission to Grow, the Asure podcast that serves as small business owners’ guide to cash, compliance and the War for Talent, VP of HR Compliance and Learning and Development at Asure, Mary Simmons, sits down with host Mike Vannoy to clear up any misconceptions around EEOC. Mary and Mike explore some of the common pitfalls employers experience in the hiring process. Mary dives into the federally protected classes, the importance of having consistent questions, and how to write accurate physical requirements in your job descriptions.

  • While some states may not require anti harassment training, there is still a federal level of regulations that need to be observed. By knowing the nuances of your state you can ensure you stay compliant with regulations.
  • Under the EEOC, there are 8 protected classes: race, color, religion, sex, national origin, age, disability, and genetic information. These are the federal protected classes, and some states add on additional protected classes.
  • For employers, acting out of good intentions can accidentally count as discrimination. While moving a pregnant employee to a less physically strenuous job may seem like an accommodation, doing so without asking could be considered discrimination.
  • While it may be tempting to discredit employee feelings alone, doing so can have negative repercussions.
  • While you may not be found legally responsible in a lawsuit, the cost and reputation losses alone can severely impact your working environment.
  • When building out your job description, you need to have physical requirements that are realistic. Any job, whether it’s working in a warehouse or sitting at a desk should include the physical requirements of the role.
  • When dealing with disability in the hiring process, employers need to ask all candidates the same questions, and allow the candidate to make the distinction as to if they can meet the physical requirements.
  • No two candidates are the same, and asking the same questions protects you from being discriminatory. Consistency in your questions allows you to evaluate your candidates on the basis of their answers.
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Read the Transcript:

Mary Simmons: So, feelings are important here. If something was said, and in a court of law, the, you know, common person sitting on that jury may think that that was offensive. And the individual felt it was offensive, right? Then that is going to be called an unlawful, um, action. So, feelings are important here. Right, because I have to feel safe at work.

Mike Vannoy: Anti discrimination laws. Are your hiring practices EEO compliant? I think a lot of small business owners are so busy grinding away trying to grow their business. Uh, they’ve heard of EEO, uh, uh, the EEOC, uh, but they don’t necessarily know, are their hiring practices compliant? I don’t think people are out there trying to break the law by any means, but this is one of those things that all businesses, big and small, that they have to comply with EEOC, uh, requirements.

So, uh, the perfect guest to unpack this topic, uh, if you’re a regular watcher of the show, you know, uh, she’s a SHRM certified professional. The last eight years, she’s been an adjunct professor at the New York Institute of Technology. She was the Director of HR Consulting for a 58 year old HR consulting firm in New York, and she’s our Vice President of HR Compliance at Asure.

Welcome, Mary Simmons.

Mary Simmons: Thank you, Mike. Glad to be here.

Mike Vannoy: Yeah, thanks. So from the top, Mary, what’s the one thing, the number one thing all business owners need to understand about their hiring practices to make sure they’re compliant with EEOC standards? Yeah.

Mary Simmons: that, um, I think that a lot of times the states that mandate the anti harassment, anti discrimination laws. know they have to do these things and I feel like some of the other states that don’t have the mandatory training, which is sort of, you know, honing in on some of these practices, um, say, we don’t have to do it, but the EEOC, the Equal Employment Opportunity Commission.

Governs the anti harassment laws, and it is applicable to all employers. So, ignoring it is the biggest mistake and digging in and really seeing how it applies to you and how you can work within the parameters of the regulations. That works best for your organization. That’s the way to be successful and to utilize these practices.

And, you know, if I can just go a little bit further, I think that, you know, everybody, you know, might look at this like, Oh, I’m not doing this. We’re fine. But there also is some paths to success built into these policies. So it’s not all don’t do that, Mike. There’s also some, hey, if you do this, you might find more success in your hiring practices and your employment practices altogether.

If you pay attention to some of these regulations.

Mike Vannoy: I think this is one of those things, classic HR, where the laws Pretty black and white. And some of the things super black and white, we’ll talk about those. Um, the implementation and results from policies take us into grayer areas than we’d probably wish. Therefore you end up with, here’s the best practices to stay clearly within the lanes.

Am I thinking about that right?

Mary Simmons: Perfect.

Mike Vannoy: Yeah. Yeah. Let, let, so let’s just start out with some basic definitions. Who is the EEOC, how, what’s their genesis, and then maybe even more fundamental, you know, what, what’s the primary purpose of anti discrimination laws, uh, when it comes to, uh, employment in the workplace.

Mary Simmons: Yeah, so, you know, I’m glad that we’re taking the lens here of, you know, building this into your hiring practice. I think also 1 of the misunderstandings about these laws is that it applies. To the employees, but it’s all it also applies to your applicants and by the way, it applies to past employees. So it is really important that employers understand these laws.

Um, and the law comes out of the Equal Employment Opportunity Commission. They’re the governing body of the federal government who oversees. Title 7, which is the law that governs these law that created these laws, let’s, let’s say, and the requirements on the compliance side. Or to create a workplace where your employees feel fully heard, where they feel safe and where they feel respected.

And when I put it in those terms, I’m hoping that everybody understands that if you provide all 3 of those, those, uh, things for an employee. That is going to engage that employee and everybody else in the workplace and that engaged workforce makes for a more productive, uh, workforce. And there’s going to be less lawsuits triggered now on the.

You know, employment side, when we’re hiring individuals, you also want to make sure that your ads are not only targeted to who you want to hire. As far as their responsibilities go, but it’s also targeted and compliant with the EEOC regulations. So, if you have both of those things, you’re going to have a good ad.

And then when we bring the candidates in, we still have to follow title 7 and not discriminate against anyone based on the protected classes.

Mike Vannoy: So let’s jump to that. What are the protected classes, Mary?

Mary Simmons: So the protected classes on the federal level are race, color, religion, sex, national origin, age, disability, and genetic information. Um, and we can go into each of these in, in greater detail in a moment, but what I want, you know, our listeners to understand is that. You’re basing your hiring decision. On the requirements of the position.

So, I think people, you know, get a lot of noise in their ears and in their, in their minds when they’re interviewing people. And yes, I think people have stereotypes, positive stereotypes and negative stereotypes, which can lead to poor decision making when it comes to hiring somebody. Um, but we need to keep in mind that.

We’re making the hiring decision. You’re driving your interview questions, which should be exactly the same for every candidate. And you’re going to differ because of their resume, um, based on the position.

Mike Vannoy: Yeah.

Mary Simmons: You know, for example, we, we can’t ask, um, all the women that come in for an interview. Hey, Julie, can you work nights?

You know, you know, maybe you have kids. Do you have good child care? And then not ask that same question of our male candidates. Oh,

Mike Vannoy: you, you and I have had this conversation many times. I, I use the example of my dad. he is, a wonderful man. He’s, uh, 84 years old. He doesn’t watch the podcast. So I can, I can, I can rip on him here. Uh, I could see him asking questions, thinking he’s being chivalrous by asking women, one question and, men another, just thinking he’s being a, good person without realizing.

He’s literally discriminating. Right. So the, the, a lot of times I think that the point here is that these aren’t. These aren’t born from bad intentions. Uh, this is not, uh, you know, I don’t, I suspect we don’t have a lot of highly bigoted racial zealots watching the podcast, trying to get better at HR.

Right. Those people probably don’t watch this show. It’s the subtle things that people get themselves in trouble that perhaps either come from habit or culture, or maybe even sometimes a misplaced good intention, right?

Mary Simmons: 100%. Um, you know, when we dig in a little bit further, um, obviously sex is 1 of the protected categories and what, we all automatically think is, sexual harassment, somebody said something inappropriate or touched somebody, but pregnancy is covered under there, Mike. And, good intentions from a manufacturer that we support.

They had a woman who was pregnant and they said, you know what, Sally, I know you’re pregnant. Why don’t you just go sit and you can be the receptionist for the next three months until you go out on maternity. But she didn’t ask to sit down, right? She was fine doing the manufacturing work and standing up.

Now she has the impression that she’s being treated differently because of her protected category because she’s pregnant, and she feels like now, if there’s any advancements, if there’s new, um, um, Policies and procedures that they have on that manufacturing floor. She’s not there and she’s not learning them.

So, she’s falling behind in her position. So, does that give her less ability for the next promotion to team lead to supervisor? It’s, it’s not, you know, positive, but you can see where those good intentions can often lead to discrimination. It happens all the time, right? Somebody comes in for an interview and they share that they’re pregnant and employers say, well, I’m not hiring that individual, but you have to make your hiring decision based on their ability to do the job.

Not, not, you know, oh, they’re going to go out on maternity and I don’t want to pay for that. It’s can they do the job, um, based on the job requirements that I put in the ad.

Mike Vannoy: Mary, tell me if you want to go here now, or if you go there later, cause this is one of those things and I wrote it down and I agree with you completely, but I think it’s where people get hung up because the law seems very, very crystal clear. Right. So federally, cause I know there’s states layer on their own specific requirements, race, color, religion, sex, national origin, age, disability and genetic information.

Okay. Those, those are the, those are the categories. Um, But you mentioned at the top, the best practices will make employees feel safe, feel heard, and feel respected. There, there, there’s a use case where perhaps the employer was trying to go over the top to make that employee feel respected. And maybe the employer is, Has this Archie Bunker kind of vibes going on.

And then the employee feels disrespected about it. Maybe the employer is just super nice and sincere and genuine. And it’s a very thin skinned employee. I mean, we can cast blame however we want. The law being black and white, employees feelings by definition, they’re subjective. How do employers manage that?

Mary Simmons: Yeah, it’s, it’s, it’s not easy, you know, listen, unlawful discrimination occurs when a person is being treated differently. Because of their protected class now, this could mean that, you know, that that individual is being treated differently because of their protected class in a less favorable way. So, I didn’t give somebody of color, a promotion and the person, and it, it appears in some way that it’s because they’re a person of color.

So they were treated less favorably or. Conversely. Others that are not in that protected class are treated more favorably, which by nature means the individual in the protected class is treated less favorably. For example, we did have have an employer where all the new, all the younger employees were given new computers and the old.

Older employees in the organization were not given new employees, new computers. And when 1 of the older employers, employees said. Um, you know, I just noticed that, you know. All the young people have young compute new computers and we don’t. The answer was, well, you’re not good at using computers anyway.

So, an old computer is fine for you.

Mike Vannoy: Yeah. Yeah.

Mary Simmons: that’s, that’s what was said. So, listen, we’re going to talk extensively about training. People say inappropriate things, and yes, I believe it’s just, um, ignorance, and not knowing what to say, and not understanding the breadth of these laws, and, and, and understanding, you know, other individuals, but, When, you know, we just had an instance yesterday and the employee is with the organization for seven years.

This is a state that is not mandated to give anti harassment training. And the individual said, I’m being, I feel like I’m being discriminated against, uh, from my manager. Uh, the manager said something significant, upsetting 6 years ago and, you know, constantly says things and I also feel like I’m being discriminated against by, um, our clients.

The employer is responsible to protect that employee in the course of their work. So that could be from the postman, the UPS guy, clients, other employees, managers, interns, anybody who comes into the workplace that they come into contact. It’s our responsibility to protect them. And when something like that comes up.

We do an investigation immediately. That’s part of making employees feel safe and fully heard. We heard you, that you feel uncomfortable. We’re going to take a closer look at this because we have zero tolerance for any type of unlawful behavior, uh, up to and including discrimination within the, the workplace.

Mike Vannoy: we can come full circle here. So if I, if I go back to my question about, you know, the black and white of the law versus employees feelings, I think our guidance is don’t get wrapped up in that weird dichotomy. We’re talking, the law is black and white. We’re going to get more specifics here in a second.

But we’re talking best practices to protect it, to create a highly productive work environment where your employees love you, you love them. You’re all around one big, uh, mission and goal and you’re highly productive together. That that’s, that’s the Nirvana here. But this is also some just practical risk mitigation, right?

Because even in, so even in some of these cases that you and I are, uh, examples you and I are sharing, maybe in a court of law or in front of some hearing The employer is exonerated. Maybe, maybe their practices weren’t discriminatory. Maybe it was just the employee misreading the situation. That doesn’t mean you didn’t spend 30 grand defending yourself or the reputation harm that you’ve done with all of your other employees.

Oh, John is suing Mike. Because of such and such, and you can’t, it’d be wildly inappropriate for you to share the details of that case or that hearing with all the other employees, but now that seed is planted that maybe you’re a bigot, you’re a racist, you’re a whatever, it’s like, these are terrible things to an employment brand and to a productive society.

So, I think, hear us today in this conversation. We’re going to get black and white of the law, but don’t get hung up on, Oh, those are, those are feelings. That’s the soft stuff of HR. BS. These are the best practices to protect your business and to create a productive work environment. Anything you would add or subtract from that, Mary, before we maybe get into more specifics of the laws.

Mary Simmons: Yeah, I mean, absolutely, because feelings here are very important. So what we talk about when we do this training, uh, and, you know, we try to customize it, you know, to the extent we can for each employer and industry, et cetera, but 1 basic message is what offends me. Might not offend you, Mike, and vice versa.

So, feelings are important here. If something was said, and in a court of law, the, you know, common person sitting on that jury may think that that was offensive. And the individual felt it was offensive, right? Then that is going to be called an unlawful, um, action. So, feelings are important here. Right, because I have to feel safe at work.

I have to feel fully heard at work. Right? Um, you know, I always give the example of, of the, you know, receptionist who had the UPS guy coming in and sitting on her desk and literally, like, touching her hair. But she didn’t think she could do anything about it. She was embarrassed to say something to the UPS guy, to her manager.

So, you know, her performance, you know, went by the wayside. Now, you might say, well, I wouldn’t care if somebody sat on my desk and did that, those behaviors. Feelings are important here. That’s almost the crux of the situation, right? Because, and that’s why we do investigations because, you know, what, what I hear from the employee or a manager or a client, right?

Clients can complain about employee behavior as well. We don’t know anything until we investigate it and we do very thorough investigations and that, that really, I, you know, I rarely say this, but. That should really be done by a 3rd party so that the employees feel like they can say things about their manager and and again, feel safe to say it.

Mike Vannoy: Yeah, right. Well, well said. I agree. I agree with all that. Um, maybe take us through, so you rattled off the laundry list of protected classes, but let’s talk specifics for what each of those being, certainly in the eyes of the law.

Mary Simmons: Right. Um, so let’s, let’s pull out some of them. There’s eight protected classes. We talked about, uh, you know, race and color and national origin. Let me give you a couple of examples. So again, Innocent, somebody comes in for an interview at a major bank, that’s a client of ours. And the interviewer who did not yet get their interview training said, gee, that’s a really cool accent.

Where’s that from? Where are you from? So, out of innocence comes, you know, the appearance that we’re being, you know, possibly discriminated against based on, uh, you know, the, you know, way I talk or where I’m from. Um, you know, 1 of the other things here is religion. Now, religion, um, we could probably take our whole hour to talk about religion because there are accommodations that employers need to make for religious.

Reasons some of those new, so out of title 7, we’re also going to talk about additional laws that some states have put into play. And also, of course, title 7 was created in 1964. there’s been quite a few amendments, but when I talk about religion, Right. You have people that, that, um, observe a Sabbath and what accommodations do, what employers need to make.

There’s also, uh, religious, um, the Crown Act is in many states, uh, Washington, Colorado, New York, um, California, of course. And what that says

Mike Vannoy: Crown Act not federal? Those are state versions?

Mary Simmons: the, there is a federal and then the states have more. Uh, specific, um, more, you know, direct policies where it says if based on my religion, I wear my hair a certain way. You can’t tell me as an employer, you can’t be hired because of it. Right? There was a very famous case. Um, and I can say it because it’s public Abercrombie and Fitch, which is a popular younger person’s clothing store.

That turned down an individual for a position and literally told the person well, if you’re going to wear your. You know, clothing, you know, religious clothing, um. And not R CLOSE, I’m not gonna hire you. So There’s been many, many cases where, in an interview, interviewers have used these protected classes to not hire somebody.

Right? I think 1 of the, I think the easiest 1 to think about is, is age. And, you know, over 40 years old is a protected class. Everybody, I always ask this when I do the training. What age do you think? And everybody’s like 55, 60, 65, uh, nobody’s guessing 40. They say 40 when they know it. Um, so over the age of 40, you get additional protections, right?

So, so just to be clear, you can never discriminate. Based on age. So, what’s that look like in an ad, Mike? It could be something as simple as putting in an ad. A great job for college graduates. So, what that infers is we’re looking for younger people.

Mike Vannoy: Right.

Mary Simmons: So, your ad and your interview are. Very important, um, space to focus on making sure that all of your interviewers are not discriminating.

And and honestly, Mike, it is going to lead to best practices because you want to be laser focused on how that position is going to get filled by the person sitting in front of you. Can they do the job? And can they do it in your way? Organization, right? So disability, another protected class. Really great example.

Person comes in on crutches. Very hard not to say, Oh my gosh, what happened to your leg?

Mike Vannoy: Right.

Mary Simmons: But that is not job related. Now I know my,

Mike Vannoy: and it may be, but if you’re going to ask, it better be right.

Mary Simmons: well, when you say it may be, tell me what you’re thinking.

Mike Vannoy: If the job requires you to walk from one, uh, and one part of a building to another and both hands occupied, uh,

Mary Simmons: Carrying something.

Mike Vannoy: right.

Mary Simmons: love it. So, like, that is a perfect example, and that’s what you ask, period. You say, part of the job responsibility, and this should be a question that is asked of everybody. And that’s why, when we create these very targeted ads for employers, and just, You know, an aside here, your job description is not your ad.

Your job description is very, very important when we’re talking about all of these discriminatory areas, right? Because it’s going to have physical requirements. Now, those physical requirements are, you know, as you just said, something very, um, you know, common that the person, it’s a essential job function.

I would add that to an ad. Conversely, I was supporting a, you know, not for profit organization, um, that makes and sells cookies. And they had in the ad and in the job description, must lift 50 pounds. I said, those must be really heavy cookies. Um, you have to, you know, you, you gotta test those, those physical abilities.

And the answer from the employer was, well, I just wanted to make sure, right. That if I had them lift 50 pounds one day that I had it in the job description. Yeah. You can’t write a job description that way in a vacuum. It has to be real. You have to, you know, penny test this, right? You have to make sure that that those physical requirements and those physical requirements could be looking at a computer screen all day, right?

And and dealing with multiple spreadsheets. Right, so that might be an eyesight thing. Um, and when we talk about some of the, the amendments to Title 7, you know, disability is 1 of them. We have the Americans with Disabilities Act, and that is going to allow for, uh, accommodations for employees that do have, um, a certain disability.

Right, and we can go on and on and on on that 1.

Mike Vannoy: forgive me, I’m going to, I’m going to jump out for a second.

Mary Simmons: Yeah,

Mike Vannoy: This is why, and I think we’ve got a few more of these to go through, but, but I love these examples. So the national origin accent, Hey, what a, what a cool accent. Where are you from? That could, you, it might be just totally conversational. It could get you in trouble.

Um, uh, great job for new college grads. It could be age discrimination without even trying to, right? Um, Oh my gosh, are you okay? I see you walk in with crutches. Could be genuinely sincere, conversational, but you could be setting yourself up for disability. In all these things, what’s popping in my head here is, and you led with this, I just couldn’t agree more.

It’s all about what are the requirements to actually perform the job. But before you can do that, you have to have first written a good job description. And to write a good job description, you have to understand the competencies required to perform that job. So job descriptions, job competencies, all these things are so.

intertwined that if, if your approach to, uh, uh, posting ads or, and, or interviewing folks is just come on in, let me, let’s get a feel for each other. Let’s get, let me get to know you, see if there’s a fit that might, that makes a whole ton of sense for a whole bunch of very obvious reasons. But that’s what leads to the inconsistency of the interview process that leads to discrimination.

So if, if the only person you ask the question, because like, if somebody came in with, with crutches, I can’t imagine not talking about that unless it, it, if it looked like somebody who just maybe just freshly broke their leg or something or a cast, right? How could that not come up in a conversation? But if you’ve done your job, creating good job descriptions, understanding the skills and competencies required to perform the job, can you walk from one end of the building 50 feet with both hands, uh, hands free?

That’s all of a sudden now a job requirement question that you just have to ask everybody and no longer becomes a question just for that one person. Right?

Mary Simmons: you should be asking those questions. That’s the way you find, you know, the people that can do the job. Right? And, you know, I get the question all the time, you know, you’re not going to ignore that. The person’s on crutches. You’re going to go. Oh, my office is down the hall. Does that work for you? Or would you like to interview here?

Um, and and so you can. It’s not like you have to ignore it. You’re just not going to say, well, I don’t know if you can do this job because you’re on crutches. It could be they just hurt themselves on in the gym. It could be. You know, you haven’t asked them the specifics if you ask them specifics and they say they can perform the job duties.

Uh, then you need to move forward, um, away from that. Right? So. Um. The, the last area that we, that we have here under the federal regulations is genetic information. And this is the, uh, Gina act, uh, genetic information, non discrimination act is, is the full name. We like it acronyms in, in HR, but this is discrimination based on genetic information.

Um, right? So you’re going to say, well, Mary, how do we know that? Well, I will tell you how we know that. So, we had an example where 1 of the employers was interviewing some somebody, and they were in the practice of going on Facebook and looking the person up on Facebook, which. I caution employers to do or certainly to allow their managers to do it.

And here’s why. So, the, the interviewer who happened to be a manager, not a HR professional saw on the individual’s Facebook page that he was paying homage to his. who had passed away of a heart attack and, you know, said, you know, you know, it’s so sad because my grandfather died at Such and such age, same as my dad of a heart attack.

Um, and I’m about about that age

Mike Vannoy: Yeah.

Mary Simmons: and they chose not to hire that person because it was a physical job

Mike Vannoy: Wow.

Mary Simmons: and then there’s then there’s the other situation where they add, they, they offer it. In an interview, and they, you know, come right out and say, you know, I’ve interviewed plenty of people who have come forward with their disability.

I can’t hear in my right ear, um, you know, will that affect my job? And I’ll say, well, let’s, let’s talk about the physical requirements of the position, which we already have in our questions. If we’ve done it correctly, right? Written out our questions correctly, and we walk through it. That way, you don’t say, absolutely not.

Absolutely. It will you ask the questions and you allow the person to answer. Yes, I can answer phones, um, all day long. Yes, I can, you know, whatever those physical requirements are. Um, so, by the way, I hope. You’re seeing that even those non traditionally non, uh, physical jobs, like a receptionist should have some physical requirements in there and answering phones.

And how many phones and how often is a physical requirement?

Mike Vannoy: anything else you want to say on the, on the individual protected classes? I think you gave examples for, for all of the, all the, the, the, the federal

Mary Simmons: Yeah, I would, you know, I want to add 1 more example, um, because remember what I said, it could be. Against a protected class, or in favor.

of another, um, set of of employees. So, right? I know everybody I use this example and everybody goes, so there was an employer that came to us to ask for help because they. Got a little feedback that putting an ad that said no Haitians apply wasn’t. A good thing to do. I mean, this was just a couple of years ago, Mike.

So it’s, it’s shocking, but people, they were a home health aid and a company, and they said, well, our clients. Say that, you know, they maybe don’t want

Mike Vannoy: we’re not racist, but our clients are, and we want to serve them

Mary Simmons: that’s basically what the statement was, but just as egregious. Was an ad that was on LinkedIn. Now, this wasn’t a client of ours, um, but it was an ad on LinkedIn, right?

So it’s going out to a lot of people and, um, it was a managerial job and it said white males preferred.

Mike Vannoy: Wow.

Mary Simmons: So that is, that is. Also discriminatory. So, I just want to kind of make those distinctions for everybody, um, because it’s not black and white. It is a whole heck of a lot of gray. There are areas that are black and white, right?

And we’ll talk about different ways that people can exhibit unlawful behavior. And some of those are pretty black and white, but, but the rest is, it can be very gray. And what I would add is that these are the federal protected categories and there’s nuances in all of them. But the states. And the municipalities, so I’m in New York, New York City has, New York State has additional protected categories to these federal.

New York City has additional ones. There’s, I’m on Long Island, which has 2, um, areas, Nassau and Suffolk County, Nassau and Suffolk County have different protected classes. Most employers don’t realize that. So it’s really important when you, when you’re creating the handbook and we do. A lot, probably a hundred a week.

Um, we dig in, we’re looking for, where exactly are you? In your state and yes, North Carolina and South Carolina and, and some of the states that don’t have mandatory. Um, uh, training still may have additional protected categories, but but again, I’m just going to. Reiterate for the 10th time that you do have to follow the federal law, but, you know, they add things like victims of domestic violence, um, military status as a protected class, criminal history, many states add criminal history, and gender identity as an additional protected category.

Mike Vannoy: a minute on that? There, I mean, there’s a whole, there’s a whole trend that’s going state by state, even city and county by county.

Mary Simmons: So, um, this, this regulation is commonly called ban the box. So, what that means is that on an application, you have to take the box off where you’re in your.

Applicant used to check yes or no. Have you been convicted of a felony? So, just to be clear, even federally, you can’t ask. Have you ever been convicted of a crime? It’s only felonies that you can ask and, um, on the federal level, there’s an additional. Protection here that says that you can’t discriminate based on criminal history, even a felony if it’s not job related.

So, if I have a, uh, felony conviction for larceny. And I don’t and I’m a greeter at Walmart. I don’t go near the. Cash register, I don’t deal with money, you know, uh, no checks, no, you know, financial responsibilities whatsoever. You can’t use that larceny conviction to not hire me. You can use other things that are in the job description.

If I can’t do what the business needs are, but you can’t. Discriminate against me based on my criminal history anywhere. It’s just the. Some states will ban the box, so not until you make a conditional offer of employment. Can you then ask, do you have a felony conviction? Uh, and and again, then that criminal conviction needs to be job related.

To use it as a reason not to hire the candidate,

Mike Vannoy: So you can’t discriminate based on, so in this case, so obviously we talked about the, the, the big eight, the federal, but then the, the, the ban, ban the box, uh, uh, there’s, there, there’s other types of state in, in, in, uh, local laws that are continuing to be passed that, okay, can’t discriminate because of this history or that history, or they’re a victim of this, um, all good things.

But what about. So I can’t, I can’t preclude, I can’t not hire you because, uh, you have, uh, you know, you, you, you hijacked a car when you were 21 years old and now you’re four years old and you’re a wonderful productive person in society, right?

Mary Simmons: right?

Mike Vannoy: But what if there’s two candidates? What if there’s 10 candidates for the job that all can do the job?

They all meet the minimum requirements. They, they all meet the minimum competencies, maybe much more than the minimums, the competencies required to do the job. I suspect where employers can get themselves in trouble is using things like that as almost like their, uh, ethics and, and are you a good person?

Okay. All other candidates equal, this person was convicted of the crime. So I’m, I’m kicking them out. When everyone else, when they and everyone else could do the minimum requirements, how coach employers how to think through that? Cause it’s not, it’s not as simple as, Oh, I’m not going to hire you because, uh, because of that.

I got to base my, I got to base my questions and my criteria on the ability to do the job. Well, what if lots of your candidates can do the job?

Mary Simmons: Yeah, so what I would say is no two candidates are exactly the same. I’ve been interviewing for 35 years and I’ve never seen two exactly the same. So you have to use your business reasoning to say, I’m going to hire Mike instead of Mary, because Mary has the, Mary has the felony conviction, but also Mike has a year more of experience.

Mike was more articulate when I asked the questions. So that’s why you have the same questions for the same candidate, because I can tell you this, they can have very similar backgrounds, but they didn’t answer the questions exactly the same. So, when they answer the question, that’s where you get to. How is Mike going to perform on the job versus how is Mary going to perform on the job.

So those are business reasons that you are selecting 1 candidate after the other over the other. Right? Um, you just, if you think of going to. A court of law, could you defend why you hired Mike over Mary? And if you can’t, then you, you know, that you’re putting yourself in a liable position. And I would just say, from getting on my soapbox for a minute.

The law in New York City is named the Fair Chance Act, and. If we keep punishing people for mistakes they made. They’re never going to come into society and be, you know, functioning members of society. And that’s why New York City named it. You know, the fair chance act that everybody deserves a fair chance, but.

You know, from, you know, I also protect employers, right? That’s my job. I want to protect you from liability, but I also want to protect you from negligent hiring. So that is a thing that we should all understand. Um, you know, I had an employer who came to us and said, Mary person has a felony conviction for manslaughter for beating somebody to death.

I have a busy warehouse and the guys are already screaming and yelling at each other. It’s high pressure, high intensity, etc. And I would say, well, what questions do you ask and what job preview do you give to show that pressure? Right and you will have people self select out because of those requirements and you also may be able to ascertain by asking this person what, you know, you, you shared with us, you had a felony conviction, which he did on the interview.

Um, and he, he probably didn’t understand the law. Right? So he’s like, before you find out, I’m just telling you. Um, and, you know, Said I have a really bad temper. That could be a reason not to hire him. Not because he was convicted of manslaughter for the felony, but because he said he had a, had a bad temper.

Mike Vannoy: Yeah. Right. That, that’s smart. That’s really smart. I, I know, I know a question that comes up a lot. It could be a little controversial, and it could certainly be interpreted as age discrimination is the concept of being overqualified. Um, I just know from my own history, I, I, I, I’ve had, I’ve had different. Jobs, different roles where I tried to hire, and it really had nothing to do with age, I could care less about age. I tried to hire the most experienced people. Um, and sometimes I found myself retraining old bad habits that I learned that I was better off hiring people that matched these skills. They had these skills, but these ones I would be better off teaching.

What, what, what, give, give guidance here. To keep folks out of trouble. And maybe just, I’d be curious for you, just your thoughts on this concept of being overqualified, period. Um, it’s probably too generalist, too generalized of a term. Um,

Mary Simmons: So, I think what you have to do as an employer is say, well, what am I concerned about? With the over experience, is it that, you know, they made more money, which let’s face it in a lot of places right now. We can’t ask what their past salary was. Um, so is it is your concern that they’re.

Uh, going to made more money, you’re going to offer them less and then eventually they’re going to find a job paying that much and they’re going to leave. Is it that you think they’re going to become bored? for your time. Uh, you know, why let’s get to the reason that you’re concerned about the additional experience that they have, because in most cases, the additional experience is going to benefit the employer versus hurt the employer.

So, is it really that you’re like, well, you have so much experience, you may be close to retirement. So why am I going to hire you for only going to be here a couple of years? Right? You’re never going to ask those questions. But I think the employer has to look at, you know, why am I so concerned about this?

Over experience, which aspect is it? Uh, and, you know, I think you can get to whether they’re, you know, a good fit. You know, I think everybody’s probably asking what makes you feel like you’re a good fit for this position. Uh, what are your concerns about any skills you may lack, um, to successfully complete this position based on the ad that you answered?

So I think you’re going to be able to, um, you know,

Mike Vannoy: Give me a great, give me a grade. So I’m just, I’m literally thinking back to old job. Um, had I asked a good behavioral question? So like I have legitimate concerns from, from, from experience. That some of the people that came in with the most experience, uh, were too hard to retrain, but not all of them.

Some of them adapted. So maybe if I had asked questions during the interview process, tell me about a time where you had to change your approach. You had to change your way of thinking and unlearn something you had previously learned. If I’ve incorporated that, give me a grade. Is that a good question to ask?

Mary Simmons: If you ask everybody

Mike Vannoy: If I, yeah, yeah, yeah, yeah, yeah.

Mary Simmons: and not just the older person that’s overqualified.

Mike Vannoy: Yeah. Right. Right. Right. I would’ve got myself in trouble. I guarantee without

Mary Simmons: So, so, well, you know, listen, this, um, that’s why we work with employers to come up with questions, right? Because you have to understand your culture. I know here at Asure, the reason that we’re so successful, one of the many reasons we’re successful is because we are so agile.

What does that mean? That also means we change things.

Mike Vannoy: Right.

Mary Simmons: make sure that I say that on an interview. That is one of the questions I ask every person I interview. Because that speaks to our culture. That’s why I joined. I think that’s awesome, right? So I say, How are you with change? Can you give me an example?

You’re right, for our behavioral questions, give me an example when you had to make a major change in, in the way that you were performing a task or a responsibility and how you worked through it.

And you are going to get whether that’s going to be a good cultural fit or not. I hate change. This was so frustrating, right?

They’re going to add adjectives. In

Mike Vannoy: Or they’re going to try faking it and they can’t give you a real life example where they’ve

Mary Simmons: right, right, right. But yeah, just, I like your question. Just ask everybody the same question and I’m good with it.

Mike Vannoy: I got a million more questions I could probably ask here. I’m looking at the clock. Let’s talk about enforcement for a few minutes, if we could. Um,

Mary Simmons: So, I think what everybody needs to understand is that, um, federally, we all need an EEO policy. The best way to do that, of course, we included in every federal handbook, um, and we also, we include the federal EEO policy, a federal EEO policy, and then a state policy, um, just to make sure that, um, you know, Anybody reading the employees reading the handbook understand you’re protected under federal law and you’re protected under state law where where applicable.

Mike Vannoy: yeah,

Mary Simmons: The other thing that I want everybody to understand is that when you’re putting that in your handbook. Get a sign off on the handbook when you give it because that policy is no good. If that employee says. I’ve been discriminated against. You go to a court of law, and you’re like, well, I, I had a policy, uh, and the employee says, I never saw it.

And you’re like, well, I gave you the handbook when you were hired. Prove it, right? So, um, you know, we have electronic signatures. That is absolutely fine. If you’re old school and you want to print the handbooks and let them sign, physically, obviously you can do that as well. You keep that signature page and so policy, my advice.

Everybody should be doing training, but the 2nd thing that you have to do on the federal side is you have to have a posting of the EEO policy. There’s obviously something we do for all of our, all of our clients payroll and HR, because it’s that important. There’s federal and state postings for every.

Employer and 1 of those policies, you know, everybody go run to your break room. I guarantee you. And if it’s not there, call me, and I’ll get you a good poster is your EEO policy.

Mike Vannoy: Right. And then maybe the last thing around enforcement, how did these things come about? Is it, uh, Uh, somebody, uh, at the EEOC knocks on your door one day and has some random audit. Is it, uh, usually an employee who contacts an attorney and you’re sued? Um, you know, I’m, I’m leading the witness here cause I know some of these answers, but yeah,

Mary Simmons: it’s, it’s, it’s all of the above, but I will, I will make this bold statement that happy. Employees, and I’m, and I’m putting air quotes around happy, um, those employees who feel safe. Right, they don’t feel threatened by anybody. They feel fully heard and respected and, and remembering that respect looks different for everybody.

And none of us are mind readers. So we have to be very careful in the way we treat our employees. They are much less likely to trigger a lawsuit and their options. Right? So, when we do the training, you have to give external and internal, um. Remedies, the reason you have everybody has to do management training is because you want to make sure that the employees have more than 1 place to go to.

Internally, so they don’t feel like they need to go to the Department of labor for in their state. If there is a Department of labor, because not every state has a Department of labor or the federal Department of labor, or the to make a claim that they can 1st go to. You know, human resources, be it. Our team outsourced or internal or both, uh, can also their manager or any manager is the way that we like to put it because your manager could be the 1 discriminating against you.

Um, and, you know, you always in the policies have to tell them those external remedies as well. Bye. Um, you know, listen, I’d be remiss if I don’t also add that, um, you know, we’re talking about the federal law and we’re talking about title 7. There’s a long, long, long list, Mike, of additional anti harassment, uh, laws.

On the federal side, Equal Pay Act, right? Age Discrimination Act. Those are amendments to Title 7. and then we started to talk about some of the state laws, but I, I think what is a miss is that the pay transparency laws that are out there where we need to put the salary range. That’s an anti discrimination piece of legislation, right?

You know, we talked about ban the box, but also the sick leaves in many of the states, Mike, those are to protect almost every sick leave law says you can take it if you’re sick, but also if you’re a victim of domestic violence or human trafficking. So I think, you know, a lot of employers may think, oh, it’s just a sick leave.

It’s also to protect employees so they don’t lose their job if they’ve been a victim of domestic violence

Mike Vannoy: Yeah.

Mary Simmons: human traffic, trafficking, right?

Mike Vannoy: Right, right. Mary, I think, I think it’s, I’m going to ask you to recap here. Um, just for the sake of time, cause this is, this is a deep ocean. We could go for a couple hours for sure. Um, we chose the title anti discrimination laws. Um, we didn’t say title seven laws. Um, it’s anti discrimination.

And between. Black and white federal laws and black and white local and regional laws. Um, the reality is, and I always kind of poke at this with you. And I think, you know, I have this healthy tension in these conversations where, you know, laws versus feelings, uh, in managing to feelings. Um, if you’re running a company, it’s, if you have more than two or three employees, you’re, you’re, you’re not going to be able to make everybody happy.

That’s it. That’s just how life works. But the more you can create an environment where people feel heard and respected, even if disagreed with, aside from being the fact that it’s just the right thing to do, and it’s going to result in a more productive workplace, even so if you’re a complete capitalist pig and all you care about is squeezing every ounce of productivity out of your team, good thing to do just for that, for that.

But if you have less Machiavellian intent here, and all you’re trying to do is protect yourself, people will give you a lot of slack. My dad, it was in a different era, but when he probably did incredibly sexist things, cause he thought he was being chivalrous to, to women who worked for him, um, you know, they thought he, they thought he was adorable, right?

They wouldn’t, they wouldn’t sue him. They wouldn’t turn him in unless it was, he never did anything egregious, right? So that relationship you build with your employees means everything in all relationships are built on trust and respect. So maybe if you could bring us home, kind of put a bow on this, uh, best practices for employers to, to make sure that their hiring practices are in fact EEO compliant.

Mary Simmons: Yeah, I, I think, again, I’ll, I’ll finish with, with how I started, which is that every employer should have a policy. Um, that is based on the Civil Rights Act, Title 7, EEO policy, equal employment opportunity. Every ad should have on it. This is an equal employment opportunity. Your federal contractors, because they’re affirmative action employers have to have a longer statement, um, that, you know, we help them with for sure.

So. You know, having those interview questions that are asked the same, giving the interview training, because we were talking today, mostly about how to make sure that we’re not discriminatory in our hiring practices, but. I think what I also just want to reiterate is that by doing all of those things.

Yes, you’re in compliance, you know, I’m always going to talk to you about compliance, but these are also best practices to find the best candidates. If you don’t ask the same questions of Mike and of Mary. How are you going to compare the two, right, to make the best hiring decision? Obviously, there’s going to be some differences based on their resumes, but following those procedures in your hiring practices, making sure that you’re in compliance with the application, 99 percent of the applications I look at are Are in non compliance.

First thing I do when I talk to an employer, you don’t think you’re compliant. Let me see your application or you think you’re in compliance. Let me see that application. Um, you know, and all of these things that are maybe the outlier states, you know, uh, the ban the box is a best practice for all employers.

Mike Vannoy: Yeah. And this is not just about compliance. Compliance is, I’d say, I,

I, I think compliance is the foundation of, of HR, right? Uh, helping us stay compliant with laws and that we’re, that we’re following laws. Um, It’s not a coincidence though, that being compliant and the best practices that lead to compliance also lead to the most productive workforces.

Mary Simmons: agreed.

Mike Vannoy: Yeah. Mary, love our conversations. Thanks for joining me


Mary Simmons: you.

Mike Vannoy: And thanks to everybody else for joining. If you got value from this conversation, I invite you to like, comment, share, subscribe to the podcast on your platform of choice. Until next week, we’ll talk to you later.

Mary Simmons: Thank you.

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