90. Staying Legal While Hiring

Sunday, September 17, 2023

Smooth Operator/Podcast/90. Staying Legal While Hiring

90. Staying Legal While Hiring


I've noticed a troubling trend among small businesses in closed Facebook communities and business groups.

Many are looking to hire only females or bragging about having a female team.

As a business owner and leader, I encourage diversity and inclusivity in all aspects of my business. The best hire I ever made was a female, who ultimately replaced me in my previous job. Her different way of approaching things and unique perspective added immense value to the team.

Having both masculine and feminine energy within a company can be incredibly useful and lead to amazing results. Diversity should be encouraged in all aspects of employment, and discrimination based on someone's race, color, religion, sex, gender identity, sexual orientation, pregnancy, national origin, age, disability, or genetic information is illegal.

In this episode, I'll be discussing why this is not only illegal but also detrimental to the success of a business. I'll also be sharing personal anecdotes about the benefits of having a diverse team and how it can lead to incredible results.

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What's going on smooth operators, welcome to this episode, hope you're having a great start to your week. So I'm going to dive into something today. And let me just preface it with saying I am not a lawyer, I am not a legal expert. But I can read, I can look at things, I can make logical assumptions for myself. However, if you have questions about some of your own practices, some of the things you're trying to do in your in your business, I would recommend consulting a lawyer. So I just want to unpack a recent trend that I'm seeing in small businesses. So like many of you, I belong to several, you know, business groups, closed Facebook communities, where a lot of other small business owners are located in and where they're sharing and getting advice from one another.

And there's this trend that I'm seeing. And it's really alarming. Because honest to Gosh, it's illegal. Okay, the trend I'm seeing is people putting up, hey, I'm looking for this type of person I'm looking to hire. And I'd like this type of person. And specifically, I hate to die me out. But it's females looking to hire only females, or bragging about that they have a female team. Hate to Danielle, but I'm just gonna say it the way I'm seeing it, because I've seen this now, several times. And for the life of me, I I don't understand why this is even happening. Because the fact of the matter is, it's illegal. It just is the Equal Employment Opportunity Commission. States it's illegal to discriminate against someone for hiring because of that person's race, color, religion, sex, that includes gender identity, sexual orientation, pregnancy, their national origin, their age, their disability or genetic information.

You can also put veteran status in there like we know these things are illegal. The law forbids discrimination in every aspect of employment. This is not right. Now, I'm gonna go through a couple of things here. Because it you know, just for me to say this is illegal, you should stop it. Like that's like Tiktok level legal analysis, right. Let's look into a couple of things here. And let me just preface with saying that my experience as a Director of Operations, leading a team, being in charge of hiring, being a business owner, leads me to look at this whole dynamic and say, What are you doing? The fact is, or fact. But my experience is that having both masculine and feminine energy within your company can be incredibly useful, it can be very good for your team. Very good. You can have amazing results by mixing the different level of energies and the different things that we all bring to the table. You know, the best hire I've ever made in my life was a female. She ultimately replaced me in the business that I was working in. And what she brought to the team was just a different way of approaching things a different way of looking at what we're doing an entirely different feel.

And that's a good thing. We should have diversity on our teams. We should be looking for that. Let's go down a couple of the legal bits. So because like I said,

there are this isn't clear cut, but you know, it kind of is so there are exceptions and we should go through that and I have consulted you know some legal documents here.

But again, consult a lawyer if you have questions. So the key to choosing to hire employees of only one gender lies in the ability to prove that the employee's gender is crucial to their job performance. And what that is known as is bona fidi occupational qualification. Now this is incredibly difficult to use that exception. So the examples that I'm reading from certain legal sites are like two examples with this as a valid requirements are, for example, cases where a woman's clothing company hires only female models to model women's clothing makes complete sense. I think that passes the smell test, a common sense test to all of us listening, or churches hiring only members of their religion for clergy positions. Make sense? I don't think anyone would argue with that. So I went a little bit deeper in here and I found this from Cornell Law. There are three circumstances that Cornell Law uses as justification. The first is privacy reasons. So what they say is requiring at least one security hospital treatment assistant assigned to each psychiatric hospital ward to be the same gender as the wards patient. Patients as permissible as bonus at occupation qualification makes sense. Right, I think there are many cases, especially in medical, or in the medical field where this makes sense to us, right.

The second circumstance is authenticity in the arts, specifically for film, theater and television. The last is if the benefits the occupational qualification relates to the normal operation or essence of the business, and the example they provide is considered a mandatory retirement age at 1262. For corporate pilots, that is not age discrimination because of safety reasons. Big just because of we know the mental and physical functions start to decline after the age of 60. And that's necessary for a pilot's performance. What they specifically state and I'm going to read this verbatim word for word is customer satisfaction or lack thereof, is insufficient to justify a bona fide at occupational qualification defense. For example, customer preference for female flight attendants does not make femininity, a BFO cue. So as an example, from my community as well, if you are serving a specific avatar, for example, women entrepreneurs, then just hiring women cannot be justified. That's not covered under the legal statutes.

So if you aren't doing that, I just want you to take a moment and sit with this. Sit with the idea that you are being discriminatory. And also the you're missing out on a potential huge pool. There's all sorts of different people out there that you can hire, for your position that may well have something that they can bring to your table that will make your business better. You know, I'm a male, right? I have had male business coaches, I've had female business coaches, each of them bring a different thing out of me. I've specifically sought out both. And all of them have had their impact in my life. And what amazes me the most is this particular community that I'm a part of where I keep seeing this happen over and over again, is led by a male. So let me get this straight person that's posting job applications like this. You have learned to grow your business from a male. And yet, you will not consider hiring males. Does that pass the smell test? Does that make any sense?

We don't always have to like the laws that we're required to follow, but you are required to follow them. And it's only a matter of time before it's going to come back and bite you in the bottom. Let's be frank, it's going to come back to bite. You are going to face repercussions for this. Maybe not now, maybe it's five hires from now maybe it's when you grow to a scale where someone finally notices, but eventually you are going to have to face the repercussions for your discriminatory job hiring. And if you are doing being discriminatory for any of these reasons, I'm telling you build your small business, like you're going to build your large business. You have to be following these parameters. You must be following the law or it's going to come back Now there are some things that we can do. And again, I'm not a lawyer, so you may want to definitely consult with someone. So from the EEOC document, it says if an employer requires job applicants to take a test, the test must be necessary relate to the job, and the employer must not exclude people of a particular race, color, religion, sex, national origin, or individuals with disabilities.

However, many of us, especially in my business, my my niche, which is online courses, we do need are people that we're hiring, to have an awareness of certain topics. As an example, I used to work for a music education company, we would put music related questions into our pre screening, also into our trial task because we wanted to hire people that had musical knowledge. So that was a trial test that we were then grading them upon. So how can we use this in a practical matter? In this particular line of thinking of maintaining congruence with the EEOC? So yes, accept applicants from everyone. But like, let's say you are a company that is religious based. Let's say you're a company for Christian entrepreneurs, and you often use Christian doctrine, as part of what part of your party or marketing parts of your content delivery parts of your coaching? Could you require knowledge of scriptures? Could you require knowledge of the Quran? For example? I would think you could, you could have that as a trial test that you then grade appropriately.

Because what does that give that gives everyone the opportunity where I might not know anything about the Torah. But if I'm good at research, I can do research during my trial task. If you're a female based company that is doing like female health related things specifically, like what if you require testings, uncertain, health medical issues that are uniquely associated with females, like we know that's a thing. So would you want your a coach for a business that coaches females to be aware of things like a woman cycle, that starts to pass the smell test if that's part of the job, because again, you're not being discriminatory, instead, you're judging, or you're providing a requirement that they have awareness and can speak intelligently about this, this topic. Again, not a lawyer, but that's something that I might put into the trial task. If I'm specifically pushing along this route, I would recommend consulting with a lawyer. Another area is just being able to demonstrate applied knowledge. So for example, I have quite a few friends that have veterans groups, where they use specifically will coach veterans on various things. So being able to relate to the combat experience to the military experience. You could use that as a trial test something that you're grading them upon. So this is a gigantic bag of worms, right? I think we can all acknowledge that. It's, it's not the most easy thing to talk about in a 10 to 15 minute long podcast episode. Because there are legal ramifications. But I just encourage anyone listening to this episode, if you're currently practicing hiring like this, like you may want to really take a look at what you're doing, and have someone else take a look at it for you. If you desire to have a company of a certain makeup, you may need to think about why you may need to try to justify it under reasons that are covered by the statutes.

Otherwise, you're opening yourself up to be sued. You're opening yourself up for liabilities, a whole bunch of mess that I don't think any of you want. We're focused on building our business. And we don't want to necessarily have to put all of our time and energy into fighting the government or losing cash flow based on the large fines a company can incur. These aren't small fines you pay for these things. So take a moment don't really think about what you're doing, make sure we're staying legal. Make sure we're abiding by the requirements that are put upon us by whatever state or nation or locality you happen to live in. What I have wrestled reference in this episode is US law. So depending on where you live, that law is probably different. Certainly different. Consult your own legal statutes of the company of the country in which you're incorporated in, make sure we're doing things the right way, the legal way. And we won't just be disappointed in the end. I hope this helps if for nothing less for us all to take a look in the mirror, and make sure we are indeed treating our our fellow man and I say man in the royal sense of the word, the right way. And that we're not practicing things that could be illegal in our country of origin. Thank you so much for listening. Again, consult a lawyer. That's what they're there for. And I hope to see you on the next episode, where we'll go back to what we talked about well, which is more operational stuff, stuff that actually impacts how we're running the business versus having to get all up in arms about things that we don't want to be dealing with. Right? None of us want to be dealing with this stuff. So let's not deal with it by following the law. Thank you so much for joining me.

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