It’s clearly against the law to publish a job advertisement that expressly discriminates against a potential applicant on the basis of any of the causes of discrimination we’ve already described. For example, a job announcement that says, “Looking for a married couple to manage my farm,” clearly excludes non-married people from consideration and is thus discriminatory. But, it’s also against the law to use language that implies an intent to discriminate. That means you need to put some thought into how you advertise and choose your words carefully. A good rule of thumb is to use language that describes the nature of the job, not the personal characteristics that might describe your ideal candidate. Writing a job advertisement that’s biased toward certain personal characteristics not only puts you at risk of discrimination claims but may also discourage good candidates from applying. When you create an advertisement that attracts diverse applicants, you may find the most qualified candidate where you least expect it.

At the end of the day, all employers need to understand that it’s not just your intentions that will be judged. The practical effect of your advertisement will also be examined for discriminatory impact. If it suggests a preference toward certain characteristics, or a bias against certain characteristics, it could be the basis for a discrimination claim. Even word-of-mouth recruiting can be viewed as discriminatory if it limits the pool of applicants to people of a particular religious or cultural background or tends to show a preference toward people with particular personal characteristics. The bottom line for farmers is that you need to think about how other people might interpret your job advertisement. If you have any doubt about whether your job ad could be interpreted as discriminatory, ask an experienced attorney to review it. A little bit of money spent up front could save a lot more time and money down the road.

A good starting point is to write a job description that gives a general overview of the job, lists the duties
and responsibilities of the job, describes the working conditions, and identifies required knowledge, skills, and abilities. But, to do that successfully, make a list of the skills and abilities that are really necessary to meet the minimum requirements of the job. Critically analyze that list. Don’t just assume that the worker needs to lift 50 pounds- check the weight of the largest thing they might lift and analyze whether and how two people might perform the task together (such that the burden is actually lesser). Don’t skimp on this step because an accurate list of characteristics necessary to perform the job is the basis for much of what follows as we navigate hiring, managing, and firing employees. If you’ve had employees in the past, consider asking them to look at your job description and tell you if it seems accurate. Some questions you may want to ask yourself are:

• Does this job require any special education, experience, or training?
• Does the job require moving heavy objects? How much weight does an employee need to move and how often? Is there any way you can provide assistance with moving heavy objects by using equipment or working in teams?
• Are there any other physically demanding requirements of the job, like being able to ascend ladders, or being able to stand for long periods of time or perform repetitive physical activities? Are there ways you can provide assistance or modify work processes to help employees meet those demands?
• Does the job involve working with hazardous equipment, chemicals, or environmental conditions? Are there any personal characteristics that would make the job more dangerous for one applicant than another?
• What does the job require in terms of work schedules and production expectations?
• Does the job require the use of any protective equipment, like hard hats or respirators?Does the job require fluency in a particular language?

Think about which of these skills and abilities are absolutely necessary to meet the demands of the job. Those should be the focus of your job advertisement. When you sit down to write your job posting, stick to the requirements of the job and use objective language to describe those requirements in order to avoid the appearance of bias and reduce the risk of a discrimination claim. If there are other skills or abilities that you’d like to see in an applicant, but aren’t absolutely necessary, identify those as “preferred” qualifications rather than requirements of the job.

When you write your job advertisement, try to be thoughtful about how other people might respond to the words you use. Consider using gender-neutral language, like “foreperson” or “salesperson” instead of “foreman” or “salesman”. Avoid job descriptions seeking “high school graduates”, or “college students”, or “strong young workers” that could suggest a bias against older applicants, female applicants, minority populations, or persons with intellectual or learning disabilities. To avoid discouraging applicants with physical disabilities, consider replacing words like “climb”, “stand”, or “lift” with words like “ascend”, “remain stationary”, or “move”. Overall, don’t identify job requirements that aren’t really a necessary part of the job. For example, don’t say that you are looking to hire “English speakers” unless fluency in the English language is necessary to accomplish the goals of the job.

What if you want to make an effort to encourage diverse candidates to apply for your job? Is it okay to state a preference for applicants with particular personal characteristics? The answer is generally “no”. It may be okay to include language in your job advertisement that encourages certain candidates to apply, but it’s not okay to include language that might discourage other candidates from applying. For example, it is not discriminatory to say that you are “an equal opportunity employer” or that “women, minorities, and individuals with disabilities are encouraged to apply.” On the other hand, it may be discriminatory to post a job ad with language that clearly expresses a preference based on one of the grounds for discrimination, such as “stay-at-home mothers wanted”, or “people of color wanted”, or “good Christians wanted”. Let’s say, for example, that you are looking to hire a person to work part-time during the day at your farm stand. It might be okay to say, “Good extra income opportunity for retirees.” It is probably not okay to post a job ad that says, “retirees wanted”. That language suggests a bias against younger applicants, including applicants over age 40, and might discourage them from applying.

The key point is that it can be a fine line between language that encourages diversity and language that implies bias. If you have any doubts about whether your job advertisement might accidentally contain discriminatory language, think about asking an experienced attorney to review your ad before you post it.

The interviewing process presents another opportunity for accidentally giving a job applicant the impression of discriminatory bias. Even though it’s natural to want to get to know a job applicant on a more personal level, remember that the interview process can be intimidating. The person you are interviewing may feel vulnerable and more likely to interpret your words as prejudiced. Discrimination claims have arisen from questions as seemingly innocent as “Do you have children?” or, “What does your husband/wife do?” or, “What year did you graduate high school?”

Moreover, certain types of questions are automatically treated as discriminatory and illegal to ask during the hiring process. Just as with job advertisements, it’s important that your interview questions focus on the requirements of the job and not stray into personal questions that could suggest bias against certain individual characteristics or favoritism toward certain types of applicants. While it’s okay to ask questions that help you understand a person’s character, goals, abilities, and experience, it’s important to put thought into how you phrase your questions and be aware of the types of questions that are best avoided.

Fortunately, if you plan ahead, you’ll have the opportunity to review and refine your interview questions before you start meeting with applicants. When you come prepared to confidently and consistently interview potential employees, you can feel good about the equity of your hiring process. You’ll also demonstrate respect toward your job applicants and your own time. Your best prospective employees will come prepared for a job interview. When you do the same, you demonstrate the integrity of your business practices and set the stage for a successful working relationship.

Think about your interview questions the same way you think about your job advertisement. Focus on questions that address the requirements of the job and the applicant’s experience related to those requirements. Write your questions up in advance and take time to review and edit them the same way you would a job advertisement. Different applicants will probably give answers to your interview questions that prompt you to ask follow-up questions, but as best you can, try to ask the same questions to every person you interview.

Obviously, one of the most important things you want to know about a job applicant is whether this person can successfully perform the requirements of the job. Take a look at the duties and expectations you described in your job advertisement. You can start your interview by restating those duties and expectations and asking about each candidate’s ability to meet those requirements. Some examples might be:

• “This job requires working a flexible schedule to meet changing needs and sometimes requires overtime and weekend work. Do you have any responsibilities or obligations that might interfere with your ability to meet those scheduling demands?”
• “This job occasionally requires operating farm equipment, such as tractors and skid loaders. Tell me about any past experience you’ve had operating farm equipment.”
• “This job requires long periods of repetitive activities that frequently involve moving bags and containers weighing 50 pounds or more. Are you able to meet those essential requirements with or without accommodation?”

It’s also perfectly okay to include general interview questions that let you know a little bit more about the personality of your job candidate. Some examples might be:

• “Tell me about yourself.”
• “What interests you about this job?”
• “What are your goals for the future?”

General questions about a person’s goals and interests are fine, even if it leads to a job candidate revealing information that it wouldn’t be appropriate for you to ask about directly. It is not against the law for you to know that a job applicant possesses personal characteristics that are legally protected against discrimination. That knowledge might, possibly, increase your risk of exposure to a discrimination claim simply because the easiest way to prove you didn’t discriminate is to not have information that could lead to discrimination in the first place. But don’t panic if you learn information you didn’t really intend to learn. Just don’t use that information in your decision making process and be sure to keep a paper trail documenting each prospective employee’s interview responses and your reasons for making your ultimate hiring decisions.

Where interview questions start to go astray is when they tend to bring out responses that relate to any of the grounds for discrimination discussed earlier in this guide. Just as with job advertisements, it can be tricky to avoid accidentally giving the impression of discriminatory bias. For example, if you are interviewing for a job that requires frequent overtime and weekend work, asking the question, “Are you willing to work weekends?” runs a risk of implying a bias against people whose religious commitments limit their ability to work on weekends. A question like, “Where did you grow up?” could suggest discrimination based on race or national origin. Asking, “When were you born?” could give the impression of age discrimination. It may be a necessary job function for your prospective employee to be available for weekend work shifts, and there is nothing discriminatory about deciding not to hire someone who can’t perform that necessary function, but this is where thinking about how you phrase your questions really matters. The concern here is not about the nature of the information that you really want to know, but about how your question might be perceived by a prospective employee. Remember that Wisconsin law requires you to avoid questions that imply discrimination. Looking back to the question examples above, you may have a better chance of avoiding the implication of discrimination by replacing, “Are you willing to work weekends?” with a question that identifies the job requirement up front, such as, “This job requires working a flexible schedule to meet changing needs and sometimes requires overtime and weekend work. Do you have any responsibilities or obligations that might interfere with your ability to meet those scheduling demands?”

The way you conduct your interview process can reduce barriers to a diverse workforce. For example, a person with a hearing impairment may need to interview with an American Sign Language interpreter or may need to interview by telephone using a teletype terminal (TTY) device. A person with limited English proficiency may need the assistance of a translator to interview effectively. An applicant with medical or childcare commitments may need to interview outside normal business hours. Your job applicants may be able to provide their own resources to assist with the interview process but, at the end of the day, the law makes it your responsibility to provide reasonable accommodations that give every applicant an equal opportunity to interview in a meaningful fashion. You don’t have to provide an accommodation that hasn’t been requested, and you don’t have to take any measures that would be unreasonably expensive or would cause unreasonable disruptions to your business operations, but if a discrimination claim is filed against you, it falls to you to justify why you chose not to provide a requested accommodation.

Finally, be aware that asking about certain topics is expressly prohibited under the law. For example, while it may be acceptable to ask about a person’s history of criminal convictions, it is illegal to ask about a person’s history of being placed under arrest. Similarly, while it’s okay – and generally required by law – to ask a job applicant if she is legally authorized to work in the United States, it’s against the law to ask about a person’s citizenship status or country of birth.

The takeaway is that you need to be thoughtful not only about the way you structure your interview questions, but also in the way that you conduct your interview process. You need to make a conscientious effort to make the interview process open and welcoming to every qualified applicant in order to avoid the appearance of discriminatory bias. By having a standardized list of questions for every applicant, documenting responses to your questions, and keeping notes of the factors that led to your hiring decisions, you can build legal resilience into your employment practices.

After you’ve interviewed your job applicants, you may face a difficult decision choosing which candidate to hire. Unfortunately, the manner in which you make that decision presents another opportunity to create a perception of discriminatory bias. The fact is that even though explicit racial prejudice is on the decline, and support for equal treatment continues to increase, people of color are still less likely to be hired over equally qualified white candidates. The same is true for older applicants, especially among women. That doesn’t mean that in order to avoid accidental discrimination you have to choose less qualified candidates or applicants who can’t perform the duties of the job even with reasonable accommodations, but it does mean you need to be prepared to justify why you chose one candidate over any others. Records documenting responses to interview questions and explaining your hiring decisions can help prove that your decisions are based on legitimate job requirements rather than prohibited discriminatory characteristics.

If you have several candidates who, at least on paper, seem roughly equally qualified to perform the duties of the job, deciding who among them to hire can be a challenging process and one that invites yet another opportunity for unintentional discrimination. This is the stage where it’s particularly important to try to make objective decisions based on the applicant’s ability to perform the duties you described in the job description, rather than your own personal preferences. For example, it may be hard to defend a decision to hire a native English speaker over an equally qualified person with a foreign accent for a job where frequent, fluent communication in English is not an essential duty. Along the same lines, it may be hard to explain a decision to hire a person with no criminal record over a person with prior convictions unless you can explain how the prior convictions relate to the duties of the job.

One good practice, generally speaking, is to take the time to write down the reasons why you chose one applicant over any other. Not only will your notes help explain your decision in the event of a discrimination claim, but they may also help you avoid accidental discrimination by calling your attention to your own personal preferences that may not be directly related to the duties of the job. Not every personal preference suggests discriminatory bias, of course, but it can be a good exercise to reflect on our own values and how they may appear to others in action.

It may also be helpful to think about some type of scoring system that allows you to rank applicants based on experience and answers to interview questions. Your point scoring system doesn’t necessarily need to be limited to ranking candidates exclusively on their ability to perform the duties of the job. It can also account for your assessment of more general interview questions, like how the applicant prioritizes tasks, or how the applicant has handled workplace disputes in the past, or simply why the applicant is interested in working for you. If you do set up a scoring system, though, don’t rely on it as a substitute for your own recorded notes and observations. You may still need to explain why you scored an applicant the way you did.

To take it a step farther, and to improve your chances of hiring a well-qualified candidate, consider inviting your top interview choices to participate in a skills test. For example, if the duties of the job include regularly using a tractor to back up a trailer, wouldn’t it be good to know if the candidate who claims to have years of tractor experience can actually back up a trailer? This is another opportunity where you can use a scoring system to objectively rank potential employees but, again, if you do use a scoring system you should also take notes to explain your scoring decisions.

Unfortunately, even though skill testing can be a good way to demonstrate a non-discriminatory hiring process, it still requires careful attention to the relationship between the test procedures and the duties of the job. For example, it may be discriminatory to require a physical strength test, even for a job that repeatedly requires lifting heavy objects. A number of successful discrimination claims have been filed over strength tests that don’t really replicate actual job conditions and instead result in gender, age, or disability-related discrimination against applicants who are otherwise perfectly able to perform the duties of the job. While skills tests can be a helpful way to assess a person’s aptitude in certain types of job functions, there are some personal traits, like physical endurance, that can only be gauged by a person’s performance on the job.

The idea of using skill testing as part of your hiring process shouldn’t be confused with the idea of the “working interview.” A skill test simply assesses a prospective employee’s ability to perform job duties. It doesn’t involve actually doing work for the business. In contrast, the working interview model usually involves having the prospective employee participate in actual work activities for a few hours or even a number of days. There is nothing necessarily wrong with using a working interview process, but farm employers need to be aware that all the rules relating to discrimination still apply during the working interview period and, just as importantly, so do all the requirements relating to regular employees – such a paying wages, withholding taxes, and addressing unemployment and workers’ compensation insurance concerns. If you want to use the working interview model, it is probably still a good practice to have a standardized verbal or written interview process as a first step to help document the reasons why you chose a particular employee to participate in the working interview, as well as a system to objectively measure the employee’s performance during the working interview and to document the reasons for your hiring decision.

When we think about discrimination in the workplace, most often what comes to mind are the obvious forms of discrimination that amount to harassment – such as racial slurs or threatening behaviors toward coworkers. There are a number of more subtle ways, however, that employers themselves may unknowingly or unintentionally introduce discriminatory biases into the workplace. For example, successful discrimination claims have been raised where employers, based on assumptions about customer preferences, assigned white workers or native English speakers to customer service positions while equally qualified people of color or English speakers with accents were assigned to labor-intensive tasks. The flip side of that scenario is when employers segregate task assignments based on the assumption that people who share similar personal characteristics will work better together rather than in a more diverse workgroup. It’s critically important that we remember to take an objective look at the way our own assumptions may be viewed through someone else’s eyes, and that we remember to avoid letting other people’s biases influence our own behavior. While we may think that segregating employees according to their similarities will reduce conflict and increase productivity, studies on workplace diversity have consistently showed the opposite to be true.

Businesses benefit from diversity in the workforce – across the lines of age, gender, and cultural backgrounds – in several different ways. First, a team with different backgrounds of experience and perspectives brings a complex skillset to problem solving and innovation. Diversity helps get past the “tunnel vision” that can result when every member of a team views a solution through the same lens of experience and expectations. Second, workplace diversity improves recruitment and employee retention. Both prospective employees and existing employees want a workplace where they can feel like they fit in, but that doesn’t mean they are seeking a work experience where everybody looks the same. Although it may seem counterintuitive, the more diverse a workplace becomes, the more broadly it appeals to people of all different backgrounds and the more likely employees become to feel safe and accepted. Third, a diverse workforce makes a business more representative of the larger community and enhances the business’ reputation in the community which goes a long way toward increasing customer loyalty.

Although every employer hopes to create a work environment that promotes employee loyalty and good teamwork, sometimes even well-intentioned decisions can leave certain employees feeling that they are being treated differently from others. Moreover, it’s not always possible for a farm owner or manager to watch over employees at all times. There may be interpersonal issues between employees of which you are not even aware. If an employee is being subjected to treatment by other employees that leads to emotional distress driven by any of the grounds for discrimination we’ve discussed earlier in this guide, allowing that treatment to continue can create a hostile work environment that may support an employment discrimination claim. Fortunately, there are steps you can take to promote transparency and provide an opportunity to address problems before they get out of hand.

A good start is to have written policies prohibiting harassment in your workplace and making it clear that employees can report a problem in person without needing to put their concerns in writing. If an employee brings a problem to your attention, make a serious effort to investigate the issue. Document your efforts to investigate, what you discover during your investigation, and what disciplinary or other measures you took to address the problem. Having written policies for disciplinary procedures can help you respond to problems in a consistent fashion and avoid any perception of differential treatment.

It’s also important to be consistent in the ways you pay employees, schedule shifts and assign tasks, and give raises or promotions. If you’ve already written job descriptions for advertising and interviewing for different positions on your farm, think about how you can formalize wage rates for those positions and apply them equally across your employees. Identify skills or qualifications that justify a pay raise or a promotion to a more responsible position. Set policies for regular performance reviews and use objective measures to decide whether an employee’s skills and qualifications meet the criteria for a raise or promotion. As with the hiring process, well-designed skill tests may offer a reliable, consistent method for determining an employee’s qualifications for raises, promotions, or job assignments.

When it comes to job assignments and shift scheduling, think about what the practical outcome of different assignments might mean. Does it create a situation where employees with similar personal traits end up being assigned to the same jobs or work shifts? Are the most desirable job assignments being given to employees with certain personal characteristics? Does a shift assignment conflict with an employee’s stated need for health-related accommodations? Bear in mind that your job assignment decisions may be perceived as discriminatory so you must have documented the good business reasons behind your choices. Think about keeping notes explaining your job assignment decisions and any changes you make to those assignments.

Finally, think about ways to ensure fairness in employee accommodations, such as restrooms, changing areas, housing, and break times. Be sure to provide break times as often as necessary to address employee health needs. Make sure that restrooms and changing areas provide a safe space for employees to undertake vulnerable activities. OSHA advises employers to allow employees to use facilities that match their gender identities and to either provide separate facilities for male and female employees or offer unisex or gender-neutral facilities with lockable doors. When it comes to employee accommodations such as restrooms or housing facilities, ask the same questions you would with respect to job assignments. Do housing arrangements create a situation where employees with similar personal traits end up being assigned to the same housing units? Are the most desirable housing or restroom facilities being offered to employees with certain personal characteristics? Are facilities accessible to differently gendered employees or employees with disabilities or health conditions? If you receive any complaints about your employee facilities, make sure to document the nature of the complaint, any actions you took or chose not to take in response to the complaint, and the reasons behind your choice of responses.

The takeaway is that farm employers will benefit from making a principled effort to create a workplace culture that respects differences while fostering inclusivity – not simply to avoid discrimination claims, but to build a stronger business. That means taking into account fairness and individual differences – rather than general stereotypes or assumptions – in all aspects of employee operations, including wage rates, promotion opportunities, job assignments, and shift scheduling, as well as employee accommodations such as bathrooms, changing areas, break rooms, and housing arrangements.

Most every business will face times when an employee needs to be laid off or let go, whether for performance reasons or purely due to business needs. Not surprisingly, employees may take these kinds of decisions personally or believe that discrimination factored into the decision, which is why the majority of discrimination complaints arise after an employee has been fired or laid off. That’s especially true when an employee receives sudden or unexpected notice of termination. Unfortunately, it is sometimes necessary to immediately terminate an employee for an egregious violation, such as ignoring a safety procedure, but that makes it all the more important to communicate and set clear expectations throughout the employment relationship. The best practice is to have stated the possibility of immediate termination for such violations in the employee manual. Consistency also requires that all employees be given the employee manual before beginning work, and that the farm document that the employee received and read the employee manual.

That makes it important to have a structured process for terminating employees and to document your reasons for a firing decision and the steps of the termination process. That process shouldn’t begin, though, with the act of firing an employee. If your expectations are not being met, be sure to communicate your concerns to your employee and document any problems and plans for improvement. If you are letting an employee go due to performance problems or workplace behavioral issues, the decision and documentation process should have begun during the course of employment by way of performance reviews and records of any employee complaints, investigations, and disciplinary actions.

If you are responding to employee performance issues or behavioral complaints, consider first whether firing the employee is the appropriate response to the problem. If there are opportunities to improve performance or address problem behaviors, creating an employee improvement plan may be a better first step. Write out a plan describing your expectations and any formal steps that will be taken to help improve performance or workplace behaviors. Review the plan individually with your employee and have the employee sign off to acknowledge having received and reviewed the plan with you. Being able to demonstrate that you identified a problem, communicated the problem to your employee, and worked with your employee to help address the problem will make it easier to justify a firing decision if it becomes necessary. Making sure that you apply your complaint resolution and disciplinary processes consistently can help show that your firing decision was fair, reasonable, and not discriminatory.

Your documented efforts to address problems will also make it easier to defend against any claims of unlawful retaliation in your promotion and firing decisions. It is illegal to fire or take any other adverse action against an employee solely because the employee made a complaint to you or to a government agency for any reason, including complaints about the work environment or your employment practices. When employees feel that their complaints have been ignored or not responded to properly, they are more likely to suspect that retaliation is the real motivation underlying your employment decisions.

Once you have made the decision to fire an employee, make an effort to clearly and honestly explain the reasons behind your decision. Have an individual exit meeting with your employee. If you have a manager or supervisor on staff, invite the manager to attend the meeting. You may find it helpful to write down the facts and reasoning that supports your firing decision and have your employee sign off to acknowledge having received and reviewed the termination notice and the rationale behind the decision. When communicating your decision, stick to the facts that led to the decision. Be straightforward and don’t try to sugarcoat your reasoning. While it’s a good idea to try be empathetic and understanding of the emotions that come with being fired, you also want to be careful to avoid saying anything that could be misinterpreted and used against you later.

Finally, consider any obligations you may have toward your employee after termination. Are there any steps you need to take regarding unemployment insurance, benefits notices, or final paychecks? Be sure to keep a copy of the employee’s personnel records on file. Don’t make any statements after termination that contradict the reasons for firing identified in your termination notice and exit interview. If you get contacted for a reference by another prospective employer, stick to the facts and rationale for firing that you presented to your employee and avoid making any insulting or disparaging comments about your former employee. If you can’t talk about your former employee without making insults, consider simply declining to discuss your experiences with the prospective new employer.