How Can Job Descriptions Trigger Lawsuits?

We're speaking with Margie Mader-Clark, an expert on human resources issues and rules, and the author of "The Job Description Handbook," from Nolo.

NOLO: Margie, let's start with a basic question. Why does someone who manages employees need a book about writing job descriptions? Why can't someone just write out the tasks that the employee has to do?

MARGIE MADER-CLARK: You have to think of a job description as a management tool that will actually cover a lot more than just hiring someone or laying out the job. You can use it in most every part of the life-cycle of the employment process -- you can use it to set up interview questions, you can use it to orient your new employee and tell them what the functions of their job are, you can use it to measure their performance on those given functions... so a well-written job description can actually take you a lot further in any of the employment processes than just the hiring process itself.

NOLO: You write in your book that the most common and costly mistake managers make is to write a job description that can be interpreted as discriminatory. Could you give us an example of how a discriminatory job description can backfire?

MARGIE MADER-CLARK: A job description, like any other part of the employment process, is governed by a couple of different laws to do with overall discrimination, Americans with disabilities is another distinct law... a job description needs to be specific enough about what you actually need someone to do or be able to do to do the job. So, if you were to write a job description that had, for instance, a lifting requirement of fifty or sixty pounds, you would automatically be cutting out some portion of the potential workforce. So you have to be certain that the job actually does require that, or can that weight be broken down into smaller chunks, to potentially be picked up by more of the workforce. So the mistakes become costly when the job description can actually become a basis for an employment lawsuit. If it can be proven that you're discriminating in your hiring practices or your promotional practices, and the job description is the basis of that, you can be liable for significant amounts.

NOLO: There are some cases where a job description calls for specific characteristics, that relate to sex, religion, or other protected characteristics, for example if you're hiring a female matron at a women's prison. So how do you know when a protected characteristic is essential to the job description?

MARGIE MADER-CLARK: Well, a little background on the concept of protected characteristics. They actually have a name in the employment law world, they're called Bona Fide Occupational Qualifications, or BFOQs. So you have to be able to prove that nobody else can reasonably do the job without having that particular Bona Fide Occupational Qualification. In these particular examples, they're sort of obvious, which makes them all the more defensible. You wouldn't have a woman as a Catholic priest, and you probably wouldn't have a man as a warden at a female prison. If they're not obvious and defensible, they probably are not Bona Fide Occupational Qualifications. For example, the weight-lifting requirement that I gave earlier, that could be done by a man or a woman of any race or religion. That wouldn't be considered a BFOQ.

NOLO: In your book, you warn against job descriptions that include a statement like, "This position is a stepping-stone for promotion," or, "If you can meet these challenges, you'll have a bright future." What's wrong with providing some encouragement to a potential employee, and how else can a company attract ambitious people?

MARGIE MADER-CLARK: Well, first of all, I think you're exactly right, and the job description is a marketing tool for the job itself, so being able to make the job sound interesting and make it sound like there's advancement opportunities and so forth is critical. However, if you're making a promise about future advancement, that creates what's called an implied contract, and if for any reason you don't advance that person, you're in breach of that contract. So careful wording in your job description can still provide encouragement, without the contractual obligation. For instance: "This position is reviewed and considered for advancement on a regular basis," or, "The position is eligible for regular salary increases." Those kinds of statements would give the candidate the knowledge that there's more to the job, or that a career could be made out of the job without making a promise that would be an implied contract.

NOLO: In your book, you discussed a case where a woman sued, claiming that the job description requirements caused an invasion of her privacy, because she had to disrobe. How does one deal with situations such as artist models, where the job description seems to require an invasion of privacy?

MARGIE MADER-CLARK: Well, first of all, applying for a specific job is not mandatory, so people are sort of opting in. So if your job description is using these Bona Fide Occupational Qualifiers, and it is an artist model, and the artists are working on nudes, that would be a specific thing that you'd be either opting to do, or opting not to do. As a part of the job itself, it's a requirement, so if you didn't want to do that, you wouldn't apply for that particular job. That's the best way to get around something like that.

NOLO: When preparing a job description, how does a manager know how to classify those employees that qualify for overtime, and those that don't?

MARGIE MADER-CLARK: Overtime classifications can be very complicated; I think there could probably be a whole separate book on that particular topic. In actual fact, the law takes the position that all positions are eligible for overtime until they're classified as exempt from that eligibility. Exemption comes in a couple of different forms, but the basic rule of thumb: the more independence the position has, the less likely it is to qualify for overtime. So if your position is something that has high direction, you're being told what to do most of the time, you have specified work hours, you have specific deliverables that don't change that much, for instance an assembly line job or something like that, most likely that kind of job is eligible for overtime. You swing to the other end of the scale, if you basically operate independently, you have sort of wide-ranging goals, but no direction on necessarily how to accomplish them, that puts you more towards the exempt-from-overtime status. It's a lot more complicated than that, there's a couple of specific categories, but that's the basic rule of thumb regarding over-time.

NOLO: Some businesses try to get away with describing the same job in different ways so that the company can avoid equal pay considerations. For example, a female position is classified as a "maid," and a similar male position is entitled "housekeeping technician." What's the problem with this approach?

MARGIE MADER-CLARK: It's pure and simple discrimination based on gender, unless those positions are paid precisely the same. If each bullet under a maid and under a housekeeping technician, each bullet about what they do, is largely the same, and then classifying those jobs or paying them differently, is the basis for a discrimination lawsuit. You don't see that happen as much anymore, I think it's starting to blend together, especially in areas that have been traditionally female, like airline stewardesses, now flight attendants, and so forth. It's much more focused on what the job is and who can do the job, rather than what gender is specific to that job.

NOLO: Your job description book includes a series of tests at the end of each chapter. Just curious, what's the purpose of testing the reader?

MARGIE MADER-CLARK: The book was intended to be a learning manual, and broken up into parts where you could just sort of read one part and then read the next if you needed it. The tests are simply a way to test your learning. It's also a great way to recap the chapter, so if you go through a test, you can see what the basic bullet points of the chapter were, the most important points... it's a little clue that you might not have to read the whole chapter if you're passing the tests, so it's kind of two-fold: you can use it as a way to short-cut the reading process, and you can also use it as a way to test your knowledge.

NOLO: What happens if a manager writes a job description in an attempt to side-step the Americans With Disabilities act? For example, the job description includes a requirement that the employee be able to climb ladders in a warehouse, when it's really not essential.

MARGIE MADER-CLARK: I think the main thing to remember here is to be flexible in your requirements. If you're writing down that an employee needs to be able to climb ladders in a warehouse, you have to think more in terms of what do you really need them to do? Do you need them to be able to access materials on a, top shelf? If so, are there other ways to access those materials; can someone else climb a ladder for them? Or is it truly a job where they would be up on a ladder all day long? If you can't prove that it's truly a job where they would be up on a ladder all day long, then you need to provide a reasonable accommodation to anybody who would apply for that job. So a reasonable accommodation in this particular example would be someone who could lift things off the top shelf for you.

NOLO: You recommend including a disclaimer in a job description. What should it say, and what's the advantage of doing that?

MARGIE MADER-CLARK: A job description by its nature is a little bit of a living document. It needs to have the ability to change with the changing business needs. So, the most important point that you want to get across in a disclaimer is that the job description is flexible and subject to change; different functions can be added at management discretion and so forth. There's a couple good examples in the book of what a disclaimer could look like, but those are the basic points that you want to get across. The advantage of doing that of course is that it leaves you wiggle room if, when the person comes onboard they have a skill set that you weren't even 100% sure about, and you want to employ that skill set, you can add it into the job description, because those can change throughout the life-cycle of employment. And, likewise, if someone is not doing something as well, you can put that function onto someone else and you can take functions away from a job description. So what you don't want is you don't want a job description to look like, again, any sort of written contract about what that job is about, and be locked down and unable to change. A disclaimer gives you that wiggle room.