February 02, 2021

Law360 Seeks Insight From Susan Kline on Ways Employers Can Screen Out Applicants Involved in Previous Sexual Misconduct Investigations

Law360 looked to Faegre Drinker labor and employment partner Susan Kline for insight on tools employers can use when screening applicants to reduce the odds of hiring someone previously involved in a sexual misconduct investigation.

In the article “5 Tips To Help Employers Avoid Hiring Sexual Harassers,” Law360 recommended asking the right interview questions. Kline suggested using carefully crafted interview questions to determine whether an applicant has caused trouble in the past.

One example of such a question could be asking, “Have you ever been in a situation where you became aware of conduct of a sexual nature that was offensive to someone, made anyone uncomfortable or was reported as inappropriate?”

Behavioral interviewing, which involves asking a candidate not how they would behave in a hypothetical situation but how they have behaved in actual situations in the past, could also be a good tool, Kline said.

Second, evaluate responses holistically. While not everyone will admit to having been involved in a sexual misconduct investigation at a prior job, Kline said a candidate’s responses to such direct questions in an interview can still elicit valuable information for a potential employer. Tone and body language and how a person phrases their response can offer clues about their character.

“Sometimes people surprise you and say yes,” she said. People tend to either deny the accusation or explain that the situation in question was a miscommunication and that they have learned from it, according to Kline.

“The interviewer has to evaluate the credibility of the response, but sometimes the manner of response indicates a disregard or lack of a good understanding of the importance of professionalism in interactions when you represent an employer, and that’s an important factor in a hiring decision,” she said.

Third, if you must search online, be cautious. Whether they’re male or female, “engaging in publicly explicit sexual communication would certainly be, I think, relevant to the hiring decision,” Kline said.

Kline called online searches “an art, not a science.” Assessing a candidate’s online presence to make hiring decisions is also tricky because a potential employer is likely to find a jumble of information that raises more questions than it can answer, she said.

“So then, now you’re worried…But do you have enough that in fairness, you can disqualify this candidate?” she said. Hiring managers could then ask the candidate about their online findings, but they still won’t have the full story, she said.

Some states also prohibit discrimination based on a person’s off-duty conduct, which could include social media posts, Kline warned.

Fourth, consider hiring a private investigator. “I would have the same concern as with social media, that hiring a private investigator may get you some information, but it may be kind of a patchwork,” Kline said.

“And are you doing it even-handedly — are you just doing this for men? Would you do the same thing if it’s a female candidate?” she added.

Finally, Law360 suggested controlling what you can by cultivating a workplace of its own that won’t allow that behavior to continue.

The full article is available for Law360 subscribers.

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