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Discrimination in Hiring Practices: What Business Owners Need to Know

From Hollywood to Main Street, an enhanced awareness of and backlash against workplace discrimination continues to make headlines every week. While the focus is often on discrimination against those already employed, this increased focus on maintaining a safe, legally compliant business means that all aspects of employment matter more than ever before.

Discrimination in Hiring

Every person you employ is covered by Equal Employment Opportunity laws, meaning your organization is not permitted to discriminate against employees based on a variety of factors. While most employers are well intentioned and do not mean to discriminate, it is important to be aware of the rules governing discrimination so you do not unintentionally run afoul of these protections. According to the Equal Employment Opportunity Commission (EEOC), federal law prohibits you from discriminating against employees based on the following factors:

  • Age
  • Sex
  • Disability
  • National origin
  • Pregnancy
  • Race
  • Religion

These protections are in place to ensure a fair and safe workplace for all, and need to be followed by all United States employers with 15 or more employees, regardless of location.

What About Prospective Employees?

You have a diverse and thriving workplace and follow the rules, but your hiring practices matter as well. While the wording may vary, this same group of rules is in place for your prospective hires too. Every time you place an ad, interview a candidate, or offer someone a position with your company, you need to be fully compliant with both the hiring and business regulations set down by your local government and the robust protections against discriminatory practices.

What Business Owners Need to Know

In this increasingly complex hiring and employment environment, it is essential to understand what attributes are protected and how these protections impact your hiring processes, from your first advertisement to your actual interviews and decision-making. When you know what the law says about discrimination and your hiring practices, you can be sure that you stay compliant and do not accidentally pose a question or state a requirement that could be seen as discriminatory.

While the federal protections described above cover only mid- to large-sized employers (those with 15 or more employees), most states have modeled their own discrimination laws that cover everyone, even small employers. No matter how many employees you have, their rights need to be respected—even before you actually make contact. Some of the most common ways discrimination can creep into the hiring process are detailed below. Avoid these and you will be sure that you are treating all applicants fairly and that your business does not risk breaking these important protections.

Discrimination When Advertising a Job

Your hiring process (and need to avoid discrimination) begins long before you ever meet your candidates. When you craft a job description or advertisement, you need to make sure that every part is fully compliant with all EEOC laws. Whether you are posting a traditional newspaper ad, advertising online, or even sharing your post on social media, your ad needs to comply with all discrimination laws and protections in force. Even the big brands miss opportunities or have difficulty with discrimination laws; in December 2017, Facebook was accused of discrimination based on age because it served up ads that could be seen as targeting young applicants. Ads posted on the site were in private groups and indicated preferences for specific qualities, including age. Other prominent businesses, including Amazon, have had similar issues related to the location and accessibility of job postings. Facebook has now included strict compliance guidelines that are required before a job can be posted.

In your traditional ads, creating a discrimination-free job post means understanding discrimination laws and coming up with wording that fully complies with every rule. Fortunately, you have the chance to edit, review, and even have someone else review your employment ad draft before it goes live. Checking each part against current discrimination laws and guidelines can help you avoid most pitfalls. In general, discrimination in employment advertising can be avoided with a careful review to the following demographic characterizations:

  • Age – Asking for a set amount of experience is fine, but “recent college graduate,” “young,” and “millennial” should be avoided due to age discrimination laws.
  • Gender/Sex – “Men needed for daily construction tasks” is no good, but replace it with "Construction workers needed" and you will not risk discriminating against women in your advertisement.
  • Physical abilities – Advertising for a warehouse worker is fine and you can specify what they need to do (e.g. "lift 50 pounds"), but you can't detail the physical attributes or abilities required. For example, "large men," "able-bodied," or similar wording should be purged from your ad before publication.
  • Religion – "Nice Christian woman needed for childcare" is actually a problem on two accounts: both religion and gender.
  • Language – "US native speakers only" could discriminate against those coming from a different country of origin. You can specify that fluency is needed in English if the job truly requires it.

On, for example, ads are routinely checked for two types of discrimination: those that specify a preference based on age/gender or other qualities are rejected, as are those that outline restrictions based on these same qualities. So looking for "young" employees is as discriminatory as stating you do not want "old" ones. Many publications, platforms, and recruitment sites take similar steps to identify and eliminate job listings that could be seen as discriminatory against a specific protected class, whether the discrimination is overt or covert.

Interviews and Discrimination

Navigating an advertisement is easy compared to the next step: the interview. When you place that ad, you have a chance to refine it, review it, and even check it for compliance against an internal checklist. These additional steps ensure that your listing is fully compliant with all EEO laws. When you work with a candidate one on one or in a group for an interview, the process is different—you are in the spotlight and you only get one chance to do it right. There are some things you simply cannot ask applicants about; avoid the topics below and you can be sure your hiring practices remain compliant.

Illegal Job Interview Questions

When it comes to interview questions, you cannot ask a potential employee about any of the areas detailed as basis for discrimination, detailed above. These topics include age, race, gender, nation of origin, religion, disability status, or health (including pregnancy). While most interviewers are savvy enough to avoid directly asking about these things, the topics can creep into conversation in other ways. A few illegal questions that should be avoided (and why they are in conflict with EEOC protections) are detailed below:

  • When did you graduate from high school/college? (Age discrimination)
  • How old are your kids? Are you planning on having any more? (Age/health/pregnancy discrimination)
  • Where did you grow up/what language did you speak first? (Country of origin/race discrimination)
  • When do you plan on retiring/how many years do you have to go? (Age discrimination)
  • A lot of your coworkers are young millennials. Are you OK with the age difference? (Age discrimination)
  • Have you ever had a serious illness or been in the hospital? (Health/disability discrimination)
  • Crutches! Ouch! Did you fall? (Disability discrimination)
  • When is the baby due? (Health/maternity discrimination)
  • Do you have childcare in place/a spouse at home? (Maternity discrimination)
  • Where do you go to church/temple/mosque? (Religious discrimination)
  • How often do you drink? (Health/disability discrimination)
  • Will you be wearing that hijab/scarf/cross to work? (Religious discrimination)
  • You are really attractive/beautiful. We would love to have you represent the company. (Sexual harassment)
  • Are you married? (Sexual orientation discrimination)
  • What kind of Visa do you have/how long are you here for/where is home? (Country of origin/race discrimination)

Asking for a Background Check

Employers can ask for a background check, but only when the time is right. According to the nonprofit National Employment Law Project, about 32 states, 150 cities, and local governments have laws in place designed to protect applicants based on criminal history status. These “Ban the Box” laws prevent employers from asking about previous criminal activity at the point of application or interview.

The “box” in question is the checkmark box often included in standard application forms that asks about past criminal history. Ban the Box laws seek to move this question further back into the hiring process, so asking about criminal background, running a background check, and other related activities are moved to a later part of the hiring process.

Being aware of your local rules about the “box” ensures you are not accidentally engaging in discrimination against someone and that you are treating every potential employee fairly. This is a rapidly growing movement and awareness is spreading, so being in the know about criminal background checks and questions could prevent you from running afoul of discrimination laws later.

Is Stating a Preference Actually Discrimination?

Stating a preference can be seen as discrimination. When you state that you specifically want workers of one gender, race, or age, then you are actually discriminating against others, even if you do not intend to. A recent NPR piece covered the topic of unintentional age discrimination and stated that when businesses ask for and favor young employees, they are actually discriminating against older ones, according to the experts interviewed.

It may seem like a positive, particularly if your heart is in the right place or you have good intentions. After all, having a diverse workplace is a positive; if your team is currently stocked with white males, it might seem like the right thing to do is to advertise for “young women of color” to fill a key role. Your good intentions, though, could cause you trouble, as stating a preference based on age, gender, or race breaks equal employment laws, even if you were trying to do a positive thing.

Remaining Compliant When Hiring

It seems like a nightmare—every word you say and every job you post could be scrutinized and found lacking by an individual or government authority. You will feel better equipped when you know what you can and cannot say and do, and you will be far more likely to remain in compliance at all times. Even if your intentions are good and you are sure you are not discriminating, it is a good idea to review the below laws before you post any job and before each interview:

  • Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate based on skin color, race, religion, sex, or nationality.
  • Age Discrimination in Employment Act (ADEA) protects employees and prospective employees aged over 40.
  • Equal Pay Act (EPA) states that men and women who have the same skills and provide the same work must be paid equally.
  • Americans with Disabilities Act (ADA) prevents discrimination based on disability.
  • Family and Medical Leave Act (FMLA) provides maternal leave protections of up to 12 weeks.
  • Genetic Information Nondiscrimination Act (GINA) protects individuals from genetic discrimination in health insurance.

The good news is that awareness can make a huge difference. Setting up transparent and ethical workplace hiring policies that align with your core values will also help you attract and retain the best team for your business and ensure you never break the law.