At the company I work for, I always browse the Internal Jobs board once a week to see what opportunities are out there. The job requirements for some of them seem a little extreme. I’m not talking about physically, I’m talking about experience and degrees. Some of the jobs seem as if they could be done by any average person with drive and ethic and average intelligence.
So here’s my two part question:
1: Say I were starting my own burger joint, “The Captains Goreburger Grill.”
I want to hire a fry cook. Here are the requirements I post for the job.
Must have a BA or better, preferably from a Ivy League University.
15 years or more experience in customer service.
At least two years of experience in a 5 star restaurant.
Now, I know my chances of getting someone with those requirements are practically none. As long as my requirements aren’t biased to any creed, sex, color etc. am I in any legal danger for having these requirements?
On the flip, If I wanted to open “Gutgores’ Organ Transplant Center for Disabled Children,” and my requirements were:
Some high school preferred
can I get in to legal trouble? I know that I can have the pants sued off of me if I hire some putz and he offs someone with malpractice. As long as I have all the appropriate licenses and paperwork in place, though, can I get in trouble for having no job requirements for a skilled position?
In my experience, the jobs that are posted with extreme qualifications are only being posted to satisfy some qualification that the job be posted. What I mean is that there is a job opening in a particular department, but they already have the position filled or know who is going to be filling it, but they can’t officially do it until the job is posted allowing other people to apply for it. By making the qualifications extreme or person specific, they can fulfill the posting requirement and not worry about wasting anyone’s time.
As to (1), in general, no, you cannot get into legal danger for having unrealistic expectations of your applicant pool, so long as those expectations do not implicate protected classes (i.e., do not express a preference according to race, religion, sex, &c.). It is possible that someone could say your requirement X is there to discourage members of protected class C from applying. However, if requirement X is legitimately related, albeit quite out of proportion, to the demands of the job, you should be safe. Even if it is not legitimately related, it is fairly difficult to prove a stated job requirement is merely pretextual and issues from discriminatory intent.
As to (2), there is more danger. If the unskilled employee causes the injury within the course of his employment, the employer will be liable under respondeat superior. (There are a couple refinements to this doctrine that I am glossing over.) I presume your question is more one of “if I hire without concern for abilities, am I, at that point, potentially liable?” Here you are safer, since a negligence action requires (i) a duty of care owed to the customer, and (ii) damages. At the moment of hire, your new employee has had no interactions with customers, so he has no duty to them (yet). Moreover, no damages can have been incurred at that point. That may likely change one he starts dealing with customers; but at the moment of hire, which is where your question is most interesting, there is only the germ of a lawsuit.
In addition to vicarious liability/respondeat superior, there are somewhat similar actions for negligent hiring/retention/supervision. The legal analysis is a little different from the above (mainly because the requirements for RS can be fairly exacting, although here it looks like they would be met). But again, as above, actual negligent activity (or inactivity) would need to occur before there could be a suit. Thus again, while the act of hiring an unqualified employee can be fraught with legal peril, the mere act of doing so is itself lawful.
Depends, obviously, on where the hiring takes place. In some jurisdictions (notably the EU) there is the concept of “indirect discrimination” – you impose a qualification which does not explicitly refer to (say) sex, but which in practice fewer (say) women than men can satisfy – e.g. “must be at least 6 feet tall”. This is sex discrimination unless the conditions is rationally justified without reference to sex.
It seems to me that imposing an excessively condition, even in relation to a characteristic that is relevant, could still fall foul of this rule – e.g. requiring people to be 6 feet high might be sex discrimination, even if a 5’ 10” requirement could have been justified. So if you are requiring a PhD just for the hell of it, you need to ask yourself whether this will impact adversely on a protected class. If it does, you could have a problem.
As stated by Hockey Monkey, many jobs are “wired.” This means that the hiring authority already has someone in mind for the job. They put down the specific experiences and qualifications that this person already possesses (regardless of whether or not they have anything to do with the job), hence guaranteeing this person will get the job.