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1. Do not make comments about age, sex, race or other personal characteristics. Ever. It seems like a no-brainer, but sometimes the obvious needs to be stated: Managers must not make comments that may indicate bias based on protected-group status. Proof of ageist, sexist, racist or other discriminatory remarks made during interviews and throughout employment can be used to support discrimination claims and can place companies in jeopardy.

2. When interviewing, do not ask applicants questions about marital status, place of birth, date of graduation or other non-job-related matters. It's sad but true: Even conversational questions during an interview may violate the law. Federal statutes and many state laws prohibit employers from asking questions about an applicant's age, race, sex, marital status, national origin, religion, sexual orientation and other characteristics. This includes indirect inquiries that might solicit this information, such as questions about the applicant's spouse (marital status), where the applicant grew up (national origin) or the year the applicant graduated from high school (age). Moreover, an employer cannot inquire about an applicant's disability unless it is obvious and may interfere with the applicant's ability to perform the essential functions of the job (for a worksheet with additional guidelines, see "Letter to Hiring Supervisors"). And, of course, an employer cannot base an employment decision on an applicant's race, sex, religion or any other protected characteristic. Questions or comments during an interview that hint at a discriminatory attitude or even touch on these topics can support an applicant's discriminatory-failure-to-hire claim. So watch what you say, base hiring decisions on objective job-related factors, apply the same criteria to all applicants and make sure you can give an objective justification for rejecting an applicant in a protected category.

3. Conduct background checks--lawfully. You've read about, or maybe even seen firsthand, the increases in workplace violence, theft, sabotage and employee-based security breaches. Running background checks on applicants (before they are hired) can effectively limit workplace misconduct. While you don't need to justify background checks, if not done correctly, they can leave an employer open to significant liability, including criminal penalties.

For example, you might want to check an applicant's mental history, particularly for jobs that provide access to confidential or sensitive information or valuable property. However, laws prohibiting discrimination against the disabled forbid an employer from seeking medical information about an applicant until an offer has been extended, and once the information is in hand, it can be used only to assess whether the applicant is capable of safely performing the essential functions of the job (for more, see www.feds.com/eeo_lib/PERSPECTIVE/FEOR199410).

Similarly, you might want to check for a criminal record. However, many states, including California and New York, prohibit employers from inquiring into an applicant's arrest record, and other states forbid questions about certain types of convictions. Even in those states where this information may be sought, refusing to hire an applicant because of his or her conviction record may be illegal without a link between the conviction and the job. For example, a drunken-driving conviction might justify rejecting a prospective truck driver but not a computer operator.

Having access to information that cannot lawfully be used subjects an employer to an unlawful-refusal-to-hire claim, so employers should carefully consider what information to seek. In this case, what you do know can hurt you.

Even where employers are entitled to obtain information through background checks, they may unknowingly gather information in a way that violates the FCRA (Fair Credit Reporting Act; see text at www.ftc.gov/os/statutes/fcra.htm). The FCRA requires employers to follow certain steps before a third party can check an individual's credit history, general character, personal characteristics or mode of living for employment purposes. These requirements would apply, for example, to criminal background reports, motor vehicle records or credit reports obtained for an employer by a third party as part of a background check. Specifically, the employer must advise the applicant in a stand-alone document that this covered information might be sought, secure the applicant's consent to obtain such information, and certify to the agency obtaining the information that the applicant has been notified and consent obtained.

In addition, before taking any employment action based on this information, an employer must provide the applicant or employee with a copy of the report and a description of his or her rights under the FCRA. Failure to do so can have serious consequences, including liability for back pay, damages for emotional distress and criminal penalties. To be safe, you should consider providing potential employees with FCRA information and requiring them to agree to a background check when they apply (for a cautionary tale, Security's Hard Knocks [January 8, 2001]).

4. Make every effort to accommodate disabled applicants and employees. Employees filed more disability claims with the EEOC (Equal Employment Opportunity Commission) last year than any other type of discrimination claim, and the EEOC has collected on their behalf an average of $40 million per year since 1992, not including nonmonetary benefits. Many of these cases revolve around whether employers provided reasonable accommodations to let a disabled person perform his or her job. Reasonable accommodations can include making facilities readily accessible, restructuring jobs, modifying work schedules, and providing special equipment and leaves of absence.

Because ADA (Americans With Disabilities Act) plaintiffs can't collect compensatory and punitive damages if the employer can prove it made a good-faith effort to accommodate the employee's disability, you must document efforts to comply. To establish a good-faith effort, seek suggestions regarding reasonable accommodations from at least three sources, including the disabled individual, the federally funded Job Accommodation Network and one organization that supports individuals with the relevant disability. The bottom line is that innovative accommodations may well be available; employers that don't make an effort in this area not only leave themselves open to litigation but may also miss out on a stellar employee (see "Holding Out a Helping Hand).

5. Keep up to date on policies against discrimination and harassment. The U.S. Supreme Court recently ruled that an employer may also avoid punitive damages for discrimination by a supervisor if it made a "good-faith effort to enforce its antidiscrimination policy." In a previous decision, the high court ruled that an employer could avoid all liability for harassment claims if it "exercised reasonable care to prevent and correct promptly any harassing behavior." Think guilty until proven innocent: These decisions, in effect, shift the burden of proof away from the employee, meaning the employer must prove it has taken steps to protect employees or face potentially huge liability. How huge? The EEOC said in May that TWA will pay $2.6 million to female employees who were subjected to sexual harassment and retaliation over a number of years.

FYI Women receive fewer than 28% of computer science bachelor's degrees, down from a high of 37% in 1984. Computer science is the only field in which women's participation has decreased over time. --American Association of University Women

It's clearly more important than ever that employers work to eliminate discrimination and harassment. Key steps include making sure your HR department implements and enforces an effective policy and complaint procedure and ensuring that your managers are trained on their obligation to comply with the policy and the law. While sexual-harassment policies and training have become more common during the past few years, employers should be sure to expand their policies and training to cover all types of unlawful harassment, including race and age harassment, and cover discrimination in management training. If you own or work for a small company without an HR training program, we offer some tips on finding a qualified independent trainer in "Tips for Diversity Training".