Avoid Costly Discrimination Claims: Draft Legally Sound Job Descriptions

Sound Job Descriptions

Learn how job descriptions serve as a multi-purpose HR tool


Why Sound Job Descriptions are key to save you time, effort, money & gain good will from potential employees. Employment candidates rely on job descriptions to determine if they should apply. Your organization should rely on job descriptions for so much more.

But first: It’s imperative that your job descriptions avoid language that opens the door to discrimination claims, warns  industry expert Melveen Stevenson in her AudioSolutionz webinar, “How to Draft Legally Sound Job Descriptions.” In this comprehensive session, Stevenson details the legal considerations you should be aware of, including: the American with Disabilities Act (ADA), Department of Labor Workers’ Compensation, and wage and hour considerations under the Fair Labor Standards Act.

Unfortunately, most organizations have poorly written (or non-existent!) job descriptions, which leads to employee disengagement and legal complications. To boost employee performance—and protect your company from costly litigation—you must have well-written, legally sound, job descriptions.

Developing Job Descriptions: Don’t Skip This Step!

Most companies don’t put in the time and the effort to create comprehensive job descriptions. This is a big mistake.

Benefits: Job descriptions provide your company with a useful tool for recruiting and hiring, performance management, career planning, and legal/compliance purposes:

  1. Recruiting and hiring: The most widely recognized use for a job description is to describe the position for which you are hiring. “Job descriptions can help identify particular skills or abilities that are necessary for a position or the environmental pressures that apply to the position,” notes Society for Human Resources Management (SHRM). A properly communicated job description tells the applicant what the position may involve or require and helps candidates decide if they are a good fit. Plus: “If an applicant withdraws his or her application, then a prospective employer cannot be held liable for any ‘adverse action’ under any applicable laws,” further notes SHRM.


  1. Performance management: Job descriptions play an important role in measuring and managing employee performance. With a well-written job description, management has a benchmark for employee evaluations. “Without them as a guide, how would an employee talk about the expectations of their role with their manager at the periodic review and planning meetings?” questions The Balance Careers.


  1. Promotions and compensation: How do you determine how much a position is worth or when an employee should receive a raise or a bonus? “Job descriptions can be helpful in benchmarking pay rates against available survey data,” notes Gallagher Benefits Services. “You can also use the descriptions as a baseline for performance, and as a tool to encourage employee performance ‘above and beyond’ the job description in order to receive recognition and rewards,” the company explains.


  1. Legal compliance: In addition to being informative, your job descriptions must also be ADA-compliant to reduce your risk of discrimination lawsuits. You must list essential duties, along with physical and mental requirements. “Job descriptions are the first line of defense for employers trying to substantiate undue hardship decisions on an inability to make accommodation, or terminations for inability of employees to do the job,” according to Gallagher Benefits Services.

A Legally Sound Job Description Is A Great Defense

You’re prohibited from asking if a job candidate has a disability that would hinder their job performance—but you “may ask applicants whether they are able to perform the ‘essential functions’ of a position, such as the ability to meet attendance or to operate a particular machine,” according to a how-to document from the Texas Municipal Human Resources Association (TMHRA).

If you ever do have a disability claim filed against your company, a comprehensive job description might be your life raft.

“A well-written job description that was prepared before advertising or interviewing applicants is evidence of what a position’s essential functions actually are, and thus is helpful in establishing the defense,” affirms TMHRA.

When faced with an ADA claim, you need to prove what the essential job functions are.

HR technology company HRTMS, which specializes in job descriptions, offers these tips for writing essential functions:

  • Include the approximate amount of time the employee will spend on the job performing certain functions.
  • Be specific regarding physical requirements.
  • Ensure that the job description accurately reflects the actual tasks being performed.
  • Make sure the job description is up-to-date and accurately reflects the current job functions.

In the end, it’s your job descriptions that will guide employees, managers, and legal counsel—so be sure they’re detailed and legally sound. The good news is that it’s never too late to improve the job descriptions you already have on file, clarify employee roles and responsibilities, and insert sound legal language. Human resources professional Melveen Stevenson provides a roadmap and best practices for developing robust, legally sound job descriptions in her training webinars.

(This post first appeared in a ProfEd blog)

By Amy P on 5th December 2018

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