Discrimination in Hiring Practices: What Business Owners Need to Know

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. In general, federal and most state laws prohibit you from discriminating against employees based on the following factors:

• Age

• Sex

• Gender identity

• Disability

• National origin

• Pregnancy

• Race

• Religion

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. Having clear procedures in place is crucial for employers to prevent unlawful discrimination and for applicants to understand their rights throughout the hiring process. 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, 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. Ensuring equal access to job opportunities for all applicants is a key part of fair treatment. These protections are supported by a broader system of employment laws and policies designed to address discrimination and promote fairness in the workplace. 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 advertisement or description, you need to make sure that every part is fully compliant with all applicable laws. Whether you are posting a traditional newspaper ad, advertising online, or even sharing your post on social media, your job advertisement needs to comply with all discrimination laws and protections in force. Pre-employment inquiries in job advertisements should be limited to only information relevant to the job, to prevent discrimination and protect applicant privacy. 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.

In your traditional ads, creating a discrimination-free job advertisement 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 evaluate your employment ad draft before it goes live. Employers should evaluate job advertisements for compliance with anti-discrimination laws, ensuring that all language and requirements are appropriate. 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 cannot 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.

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. During interviews, it is essential to evaluate whether candidates are qualified for the position based on their qualifications, skills, and experience, rather than on protected characteristics such as age. 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. Sometimes, illegal questions may even appear on job applications, so it is important for both employers and applicants to be aware of what is prohibited. A few illegal questions that should be avoided 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 co-workers 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)

• What kind of Visa do you have/how long are you here for/where is home? (Country of origin/race discrimination)

Applicants may be asked to provide evidence of their qualifications, such as capability, commitment, or leadership, but such requests must not be discriminatory or used to unfairly exclude candidates based on protected characteristics.

If an applicant experiences discrimination during the hiring process, they have the right to file a complaint with the appropriate authorities.

Asking for a Background Check

Employers can ask for a background check, but only when the time is right. Most states 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 ask 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.

Employers should have clear procedures in place for conducting background checks to ensure compliance with anti-discrimination laws. Applicants must also have access to information about their rights regarding background checks. If background checks are used to determine eligibility for training or apprenticeship programs, participation must be subject to non-discriminatory practices.

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. Policies must not treat certain groups more favorably than others, and fair treatment must extend to other employees, not just new hires. Promotion decisions, like hiring, must also be free from discrimination and should be based on merit, job performance, and qualifications rather than stereotypes or biases.

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, gender identity, sexual orientation, or national origin.

• Age Discrimination in Employment Act (ADEA) protects employees and prospective employees aged 40 and over.

• Equal Pay Act (EPA) states that men and women who have the same skills and provide the same work must be paid equally, ensuring fair wages for all employees.

• Americans with Disabilities Act (ADA) prevents discrimination based on disability and requires employers to provide reasonable accommodation to qualified individuals.

• Family and Medical Leave Act (FMLA) provides leave protections of up to 12 weeks for parents, personal illness, and family care.

• Genetic Information Nondiscrimination Act (GINA) protects individuals from genetic discrimination in health insurance and employment.

Employers must also ensure compliance by providing equal access to employee benefits and making reasonable accommodations for employees with disabilities, pregnancy, or religious needs, unless doing so would cause undue hardship.

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.