Employment laws that prohibit discrimination against a protected class such as age, race, religion, and sex cover every aspect of the employment relationship, including the hiring process. Employers are also prohibited from discriminating against prospective employees due to the belief that they belong to a protected class or might in the future, regardless of whether or not they are correct. The law not only prohibits deliberate acts of discrimination, but also any practices or policies that negatively impact members of protected groups disproportionately. The only exception to that is if the policy is job related and necessary for the business to operate. Despite studies that have shown great benefits to having more diverse workplaces, companies still tend to hold on to discriminatory hiring practices. The Equal Employment Opportunity Commission works to enforce anti-discrimination laws and hold employers accountable for any violations.
What Laws Prohibit Hiring Discrimination?
There are many federal laws in place to protect employees and prospective employees from discrimination, including:
1963 Equal Pay Act – Employers must pay employees equal pay for equal work regardless of sex.
1964 Civil Rights Act, Title VII – Employers are prohibited from making employment decisions based on race, color, national origin, religion, or sex. This includes the hiring process, hiring decisions, internal advancement opportunities, and terminations.
1967 Age Discrimination Act – Employers cannot discriminate against workers over 40.
1990 Americans with Disabilities Act – Employers cannot discriminate against workers with mental or physical disabilities including psychological disorders and chronic illnesses.
1993 Family & Medical Leave Act – Protects employees for a total of 12 weeks unpaid leave for personal injury or illness, caring for a family member who is ill or injured, or the arrival of a new child.
2008 Genetic Information Nondiscrimination Act – The genetic information of an employee cannot be used against them, particularly in regard to insurance benefits.
When Can You Legally Discriminate When Hiring?
There are times when the requirements or policies of a job may be considered discriminatory but are necessary due to the nature of the job. These are known as bona fide occupational qualifications (BFOQs), and they are generally rare and narrowly defined. Some hiring discrimination examples include:
- Federal government jobs requiring USA citizenship
- Firefighters requiring health and fitness testing
- Airline pilots having a set retirement age
- Religious organizations only hiring members of that religion
- A lingerie boutique only hiring female fitting room attendants
There are some BFOQs that may be allowed in some specific situations and not others. Oftentimes, an employer may try to argue that they have a BFOQ that is later found to be invalid. It is worth noting that the law does not recognize any bona fide occupational qualifications for racial discrimination.
Types of Hiring Discrimination
Different types of discrimination can be defined under different categories:
Direct – Treating someone differently from others in a negative way based on protected characteristics
Harassment – Creating a hostile work environment for someone or engaging in consistent pervasive abusive behavior towards them due to protected characteristics
Indirect – Having broad practices and policies for everyone that disproportionately negatively affects people who belong to certain protected categories.
Unintentional – Unknowingly engaging in actions or using language that is discriminatory or offensive towards a protected group.
Different Ways to Discriminate While Hiring
There are many ways that employers might exercise illegal discriminatory practices in their hiring policies and process such as:
- Age discrimination – Throwing out any resumes or applications with a date of birth above a certain year
- Racial discrimination – Only hiring members of their own race or skin tone
- Nation of origin discrimination – Asking an applicant where they were born or where they grew up
- Religious discrimination – Only posting job advertisements in particular religious establishments
- Sexual orientation discrimination – Not hiring anyone they think might not be heterosexual and cisgender
- Disability discrimination – Listing unnecessary requirements to weed out applicants with disabilities
- Sex / gender discrimination – Not hiring women for a traditionally male oriented role
- Pregnancy discrimination – Rejecting an applicant during her pregnancy when she is capable of doing the job.
Common Hiring Discrimination Violations
The following are the most common types of hiring discrimination violations.
When posting help wanted ads, the job descriptions should not specify any protected qualities. Phrases like “healthy young men needed” and “applicants should have traditional Christian values” would be in violation of anti-discrimination laws. If there are requirements specific to the job duties, those should be listed neutrally such as “must be able to lift 25-50lb boxes” and “seeking Spanish speaker”. Advertisements should also be accessible to everyone and not only shown to certain demographics.
Many jobs advertise openings by word of mouth from their current employees or management. This can create a small and biased pool of applicants with the same characteristics. It is important that recruitment be spread out and not focused on or alienating any specific groups of people. Even online recruitment processes often use algorithms that might have discriminatory programing such as filtering out certain zip codes or targeting certain demographics.
Application & Hiring
Some employers may use personal information on a job application to filter out or choose people based on demographics. There have been instances of hiring managers using applicant’s names to filter them by race, ethnicity, or gender. Many applications ask for high school and college information which can sometimes reveal an applicant’s religion as well. Sometimes, employers will require applicants to undergo proficiency or personality testing. While this can often be relevant to the skills of the job, it can also be a way to filter out applicants with any disabilities.
Face to face interviews rely on the interviewer being impartial. They cannot bring any of their own biases or judge a candidate on anything but their qualifications. Sometimes, a person might not be the right fit for a job due to their personality or attitude, but sometimes, interviewers may use that reasoning to explain away their own prejudices or be basing that determination on stereotypes.
Illegal Job Interview Questions
Employers are not permitted to ask applicants about personal information relating to any protected class. There are some who disregard this entirely and will flat out ask applicants directly, but there are those who will try to trick applicants into divulging the information more subtly. For example:
Ethnicity / National Origin:
- “Where did you go to school?”
- “What is your primary language?”
- “Where did you grow up?”
- “Are you able to work weekends?”
- “We do office parties sometimes; do you have any dietary restrictions?”
- “Are there any specific dates that you know you’ll need off?”
- “Where do you go to church / temple / worship?”
Pregnancy / Parental Status
- “How soon are you expecting?”
- “Is it difficult to find a babysitter?”
- “How old are your kids?”
- “How long have you had this degree?”
- “What year did you graduate from high school?”
While employers may be able to ask questions that open an opportunity for an applicant to divulge protected information, the applicant does not have to take the bait. Vague, non-committal, or stock responses can often be used to answer invasive questions.
Much like advertisements and recruitment, referrals should be made based on qualifications needed for the tasks and duties of the job. Referral decisions should not be made based on any protected characteristics or discriminatory reasons. Unconscious biases can often influence decisions when dealing with personal referrals and do it is important to be mindful of impartiality.
Job Assignments & Promotions
Internal employment decisions such as assignments, projects, training, and promotions must not be made with any discriminatory influence. A company may boast having a diverse workforce but then only have men in management positions. Some stores have faced consequences for only allowing white employees to work sales positions and having all other employees work in the back. It is also prohibited to require testing for positions that are needlessly disproportionately weighted against protected classes.
Pay and Benefits
Employees performing the same work must be paid the same regardless of things like race or sex. Pay disparities must have valid motivations such as experience, training, and certifications. Employees must also be offered equal benefits such as health insurance regardless of things like age or disability. Employers are prohibited from making any wage and benefit decisions based on protected categories.
Employers are not allowed to give a negative reference for an employee on the basis of any protected class. They are also not allowed to falsify information or refuse to give any kind of reference for members of a protected class. Employment references should be factual to the employee’s skills and qualifications.
Reasonable Accommodations & Disability
If an employee has a disability, they may request reasonable accommodations to help them perform the essential functions of their job. Employers must provide requested disability accommodations or alternatives that are equally effective. The only exception is if the employer can prove that the accommodation would cause them and the business undue hardship.
Reasonable Accommodations & Religion
Employers must also allow accommodations for employees to practice their religion. This can mean allowing for flexible schedules or modifications to company provided meals. As with disability accommodations, there is room for employers to deny requests that would cause undue hardship.
Training & Apprenticeship Programs
Internal advancement opportunities such as training courses and apprenticeship programs should not be offered or denied based on protected characteristics. However, sometimes employers are permitted to apply age limits to certain types of apprenticeship programs.
Information gathered to consider an applicant for employment should be strictly relevant to the job itself. Information such as organization memberships and social media links can provide employers with protected information that should not be part of the hiring process.
Generally speaking, employers are permitted to look into the background of a prospective employee or inquire about any criminal history. However, over 30 states have laws in place regulating when employers are permitted to do so. These are known as “Ban the Box” laws in reference to employers that require applicants to checkmark a box if they answer yes to questions about criminal history. These laws do not forbid background checks or questions about criminal history, but they do require that they occur later in the hiring process.
Employers do have the right to require their employees to wear a uniform or adhere to some kind of dress code. However, those requirements must not be discriminatory against any protected class. An employer cannot forbid clothing styles from certain cultures or specific religious attire if it is in line with the set dress code. They can also not forbid specific natural hair styles. Uniforms and dress codes can also be modified as an accommodation. An employee whose religious practices include dressing modestly might request to wear long sleeves underneath a uniform that consists of a tank top.
How Do You Know if You Are Being Discriminated Against?
Unfortunately, it can be difficult to tell and even more difficult to prove that you were denied a job due to discriminatory reasons. Employers are often vague when sending rejections if they even send one at all. Sometimes it is personally obvious due to the way an interviewer behaved or how they reacted to certain things, but there is still the problem of evidence. There are also employers who may have unfair hiring practices that are not necessarily illegal.
What Should You Do If You Have Been Discriminated Against During the Hiring Process
The Equal Employment Opportunity Commission is responsible for enforcing employment laws including those regulating the hiring process. Formal complaints can be filed with their offices, and they will investigate the issue. It is best to give them as much evidence as possible. If they determine that the employer did violate the law, they may attempt to find a resolution themselves. They may also issue a Right to Sue letter for you to seek legal action yourself. It is also a good idea to speak to an employment attorney who handles discrimination in hiring.
Why is it So Hard to Prove Hiring Discrimination?
Employers generally use stock responses for employment rejection. These often include phrases such as “the position has been filled” or “we decided to go in another direction” or “not the right fit”. They may even include a note that they will keep your resume on file to consider for future openings. It is also becoming increasingly common for employers to not send rejection notifications at all, even if an in-person interview was conducted. If the candidate is not selected, they simply never contact them again. If the employer never states a specific reason for the denial, it can be difficult to claim that the reason was discriminatory. There are many reasons why someone perfectly qualified for a job might get passed over. Some are legal and valid, some are illegal discrimination, and some are unfair but still legal.
How Do You Prove Illegal Hiring Practices?
The best way to prove anything is to have hard evidence. Unfortunately, this is less likely to be available for hiring discrimination claims. There may be blatantly illegal questions on an application, or a former employee may have an internal email discussing illegal policies. More often than not, hiring discrimination is proved by compiling enough circumstantial evidence to reveal a pattern. The demographics of the company might show a bias for or against certain characteristics, or records could reveal a disproportionately high rejection rate for a specific protected class.
Contact Mesriani Law Group Today if You Have Experienced Hiring Discrimination
Discriminatory hiring practices are not only an issue for applicants but can also impact active employees as well. A candidate may be selected, given an offer, sign the paperwork, and then have that offer rescinded when the employer learns they are part of a protected class even though they were technically hired. Some employers will even retaliate against employees for reporting or refusing to participate in discriminatory practices. Our firm specializes in employment discrimination and retaliation law and has experience handling these situations. Call Mesriani Law Group today for a free consultation.
Hiring Discrimination FAQs
What is discrimination in hiring?
When an employer treats an employee differently than their coworkers in a negative way due to a protected characteristic, it is considered illegal discrimination. Anti-discrimination employment laws apply to every aspect of an employment relationship, including the hiring process. When employers deny employment opportunities to people because of their protected class, whether intentional or incidental, it is considered hiring discrimination.
How do you identify hiring discrimination?
There are many signs to watch out for that can indicate that an employer may be discriminatory in their hiring practices, such as:
• Targeted wording in job advertisements
• Requirements that have nothing to do with the job
• Insular recruiting practices
• Prohibited application questions
• Invasive interview questions
• Disproportionate rejection rates for certain groups
• Rescinding offers after meeting applicants in person
What are the most common types of hiring discrimination?
Any member of a protected class might face discrimination from a prospective employer or notice discriminatory biases in job postings and applications. The types of discrimination that applicants come across most often during the hiring process are:
• Race including National Origin, Ethnicity, & Color
• Sex including Gender Identity & Sexual Orientation
• Disability both Mental & Physical