It's important to understand that federal law prohibits employers from discriminating against applicants during the hiring process. The Civil Rights Act of 1964 guaranteed that no employer could discriminate against applicants based upon their race, color, religion, sex, or national origin. When hired, the same laws apply to firing, promotions, training, wages, and benefits.
Additional acts and amendments have expanded the laws to include protection from pregnancy discrimination, age discrimination, and disability discrimination. The U.S. Equal Employment Opportunity Commission (EEOC) is tasked to enforce these laws.
Furthermore, most states have adopted additional protections against discrimination in the workplace. If you feel that you've been the victim of hiring discrimination, you may be interested in the hiring discrimination law process. We are here to help, and most importantly, be an advocate for your rights.
Can you legally discriminate when hiring?
In extremely rare instances, an employer could, in fact, discriminate on the basis of sex, religion, age, or national origin, but never on race. The exception is called bona fide occupational qualification (BFOQ). It recognizes that there are times when a person's sex, religion, or national origin may make it improbable for the applicant to be able to carry out the necessary functions of the job.
Some real-life examples are airline pilots who must retire at a certain age for safety reasons or a Catholic church requiring their priest to be a Catholic. As you may be able to recognize, these are valid reasons but very narrow in scope. Conversely, BFOQ is not a legitimate argument in instances such as the job is too risky for women to do it, or a young person must do the job because it requires lots of heavy lifting.
What are some examples of unethical hiring practices?
- Advertisements: It would be unethical to advertise an opening that featured wording like "women encouraged to apply" or "this job is ideal for recent college graduates." Statements like those could discourage men and people older than 40 from applying for the position.
- Recruitment: If an employer only relied on word-of-mouth recruitment from its primarily white workforce, that could be illegal if all the new hires are white. Even automated recruitment processes leave room for discrimination if the system doesn't allow applicants to explain gaps in their employment history while they were experiencing a serious illness.
- Application and hiring: If an interviewer gives an applicant more challenging questions than other applicants or asks the applicant to perform a complex task that wasn't given to other candidates, that could be conscious or unconscious bias. Another example is not accomodating an applicant with a disability.
- Pre-employment questions: An employer should not be asking questions that can reveal an applicant's race, sex, national origin, disability status, age, religion, color, or ancestry. Questions regarding organizations the applicant is a member of could potentially be used to discriminate against them. Specifically, employers should never ask questions about disability before an offer is made for the job.
What are additional anti-discrimination laws?
- Sexual Orientation: The EEOC interprets Title VII of the Civil Rights Act of 1964 to include the forbiddance of employers discriminating on the basis of gender identity or sexual orientation.
- Parental Status: Since May 2, 2000, it has been illegal to discriminate against individuals based upon their status as a parent, including foster parents, adoptive parents, stepparents, or legal guardians. Furthermore, it is prohibited to discriminate against parents of children that are over 18 that are incapable of self-care because of mental or physical disabilities.
- Pregnancy: An amendment to Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate against persons on the basis of pregnancy, childbirth, or related medical conditions.
- Reprisal/Retention: If during the hiring process, an individual identifies and reports discriminatory practices by the employer, and the employer then refuses to hire the qualified candidate, the candidate is protected under Equal Employment Opportunity laws.
- Credit History: Some states have recently passed laws prohibiting employers from asking for or using an applicant's credit history as a reason to deny employment. That is for some positions. An employer will likely have to have written documentation from the applicant agreeing to a credit check.
- Worker's Compensation Claims: In most states, it is illegal for employers to deny jobs to applicants based upon prior worker's compensation claims.
- Criminal Records: Each state has laws pertaining to whether an employer can consider criminal history as a basis to hire or deny an applicant. Some states outright prohibit this information from being used when the conviction has no relation to the job opening. In other states, criminal record checks are restricted to certain jobs like childcare or teaching positions. Largely, state lawmakers have begun to realize there has been a historical disparity against certain classes of people that make a criminal conviction more likely. Thus, using a criminal conviction as means to bar employment would be discrimination on top of discrimination.
How do you prove illegal hiring practices?
It's always depressing to apply for a job you know you are well qualified for, only to get turned down because the employer is engaging in illegal hiring practices. In instances like this, it's crucial to gather ample evidence to make a successful case in court. In order to prove hiring discrimination, you have to qualify for the legal protections available under the Civil Rights Act of 1964.
The legal term is being a member of the "suspect class." Being a member of the suspect class means that you are part of a group of people who have historically been discriminated against, as described earlier. Suppose you are simply an under qualified candidate for the position, or the boss doesn't like your tattoos or the fact that you're a Red Sox fan. In that case, there is no legal remedy for your situation. Furthermore, employers are not required to provide a reason for not hiring an individual.
Most hiring discrimination lawsuits rely on one of two angles. The employer made their decision based upon legally off-limits information, or the employer lied to the candidate. The hiring discrimination law process requires proof to stand up in court.
Unfortunately, hiring discrimination lawsuits are challenging to prove. Evidence in this sort of case is typically circumstantial evidence. As the plaintiff, you and your lawyer would need to show that you are a member of a protected class, that you were qualified for the position in question, and were denied the job based upon illegal, discriminatory practices. In theory, this could be done by doing statistical research on the employer to show a pattern of rejecting qualified individuals if they are Hispanic or female, for example.
The other, less common method of proving illegal hiring practices would be with direct evidence. This could include comments, emails, witnessed events, or letters, for example. While some employers may be foolish enough to provide direct evidence of their prejudices, it's not as common.
Can I file an unfair hiring practices lawsuit?
If you believe you've been the victim of unfair hiring practices, the first thing you need to do is file a formal complaint with the EEOC or the Civil Rights Division at the United States Department of Justice. It's important to connect with a hiring discrimination lawyer because there are deadlines to maintain, and strong documentation needs to be presented to help your case. If either of these agencies decides to investigate your charge and find discrimination indeed took place, they will attempt to negotiate a voluntary settlement with the employer.
If no settlement can be reached, either the EEOC or the Department of Justice may file a lawsuit. If they decide not to proceed with a lawsuit, you will be given a "Notice of Right to Sue." Because there are statutes of limitations, proceeding quickly with a lawsuit after receiving this type of notice is critical. The hiring discrimination law process can be drawn out. Still, employers should not be allowed to get away with illegal practices that violate laws that have been enacted to protect our working class. Don't hesitate to reach out to us for a free, no-risk case evaluation today.