Narrowing the Field


Magnifying glass searching through applications

Now that you have recruited a blizzard of applications – or least a handful – how do you narrow the group to the most promising candidates? For the majority of openings, granting interviews to everyone who applies just isn’t practical. Keep these key points in mind:


Again, Be Prepared to Accommodate

For employers of fifteen or more employees, the Americans with Disabilities Act requires provision of reasonable accommodation during the interview stage of the hiring process. Consult the EEOC’s “Job Applicants and the ADA” as a resource. Try to think creatively and avoid excuse-making.


Refer Back to Your Posting and Job Description

Compare the applications and resumes you have received to what you advertised and against the job description that captures the skills and abilities you need for the open role. The extent to which you do this the old fashioned way, by reading resumes and applications, will depend on whether you are already relying on screening devices such as algorithms or collection of applications through a recruiting agent of some sort. Tip: As we discuss below, keep an eye out for signs that third party screening is producing a disparate number of candidates with similar personal traits, which could be a sign of a bias in the selection criteria, even if totally unintended.


Objectively evaluate whether the qualifications presented are a good match for those needed. Consciously check yourself for adding in layers of assumptions. If you don’t see candidates who are satisfactory matches for what you really need, post again, try different resources, throw your net wider.


If the information provided by an applicant leaves open questions about important qualifications, does the rest of the resume justify an interview to gather more information? Can you easily answer the question by reaching out to the candidate to ask for more information before deciding whether to grant an interview?


If you decide to grant exceptions to some candidates who lack important job qualifications, be prepared to explain why the exceptions were justified. That explanation should be based on objective business reasons that are not discriminatory. For example, giving a 22-year old applicant a pass on meeting a job skill requirement, but not granting that exception to a 42-year old, could land the business in hot water.


Young Asian man holding up phone with green screen


Screening Through Social Media – Not for the Faint of Heart

Do you have a policy that covers how you will use social media as part of your screening process? If you do not, things can get a little crazy for you. Businesses are permitted to check social media when vetting candidates. However, that should be done using a standardized approach. Don’t pick and choose among your candidates. Decide which member of the selection team will do your screening and when in the process that will be done. This helps to ensure consistency.


The curse – or blessing – of social media screening is that the company may find information that it really is not entitled to know at the pre-offer stage – information it should not be taking into account, such as race, age, or medical or mental health problems. On the other hand, the business may discover negative qualities that are better found out before they infect the workplace, such as posts that are violent or racist or otherwise discriminatory. If you are going to “count” whatever you find on social media against one candidate, be prepared to accord the same treatment to every candidate using the same standards. (Do not count against any candidate information you should not be considering at all, of course.)


A final word of caution: generally speaking, what the candidate makes publicly available is currently fair game. However, requiring passwords or access to otherwise private accounts is not a good idea, nor is asking others to maneuver access for the company or obtaining private information through subterfuge.


Checking References

Decide where in the hiring process references will be checked and apply that decision on consistently. Keep the questions uniform, though follow-up unique to each candidate is permissible. Proceed with caution and courtesy in checking references for candidates who are currently employed, especially if you want to check references with their present employer.


Consider securing an authorization from your candidates that allows past employers to speak more freely. While Texas law permits past employers to provide truthful substantive information, many are reluctant to do so because they fear being sued for providing unflattering information, even if true, or mistakenly believe that the law allows only release of the basics, such as dates of employment and position held. A signed release may help them feel more comfortable, though they may still be wary to provide you much negative information.


Young African-American man having a remote interview


Phone Interviews/Pre-Screening

The same standards apply in pre-screening that apply during full interviews, which means that you cannot ask legally prohibited questions as part of your weeding out process. For example, you should not be phoning up your female applicants to confirm that they have reliable child care.


Background Checks

If you use third party background screening services, be sure to familiarize yourself with the requirements of the federal Fair Credit Screening Act. This statue imposes detailed requirements for notice to applicants and obtaining their informed consent to such screening.


Be careful that you do not screen candidates out for reasons that are not truly valid. I suggest reviewing the EEOC's Uniform Guidelines on Employee Selection Procedures to get a solid feel for these issues. Be mindful that you should not be eliminating qualified candidates due to a history of criminal convictions without a particularized assessment of the past problems and how those correlate with the position sought. Candidates should not be eliminated based on arrests only.


Be Sure Your Screening Algorithms are Clean

Regardless of whether you use a third party or have created your own screening algorithms, confirm that your screening tools are not eliminating people for illegal reasons. Algorithms should not eliminate individuals with disabilities who actually would be able to do the job with a reasonable accommodation. Employers should verify that reasonable accommodations are not necessary to allow job applicants to be rated fairly and accurately by the algorithm. Perhaps the software is sneaky and is actually designed to screen out people with certain legally protected characteristics – a big no. For example, the EEOC announced in May 2022 that it had sued three integrated companies that provide tutoring services to students because their online recruitment software had been programmed to automatically reject older applicants because of their age, a violation of the federal Age Discrimination in Employment Act. According to the EEOC’s lawsuit, the companies programmed their application software to automatically reject female applicants age 55 or older and male applicants age 60 or older, allegedly rejecting more than 200 qualified applicants based in the United States because of their age. Do not take this kind of approach!


Check these DOJ and EEOC resources as starting points.


Our next post will cover candidate interviews – a step in the process where you can both happily identify good prospects…or let things go off the rails horribly.


This post provides general information only. Nothing in this post is legal advice. Always consult qualified legal counsel to secure advice about your particular questions and circumstances.