You are probably aware of employment laws that could create liabilities if your company fails to comply with them. However, even before a person becomes an employee, certain antidiscrimination laws protect them during the application process.
Most employers must comply with employment laws enforced by the U.S. Equal Employment Opportunity Commission (EEOC). Your state, county, city, or town may also have laws that prohibit employment discrimination—including discrimination against job applicants—and Fair Employment Practice Agencies (FEPAs) that enforce these laws.
You could run afoul of fair hiring laws without intending to. This means that hiring managers who understand what can and cannot be said during the interview process and what can and cannot be asked on an employment application is critical. You should discuss any questions about these matters with an attorney to avoid a potentially costly lawsuit.
Hiring Laws and Impermissible Interview Topics
The EEOC is responsible for enforcing the following antidiscrimination statutes that are designed to protect certain classes of people:
- Title VII of the Civil Rights Act of 1964 (prohibits employment discrimination based on race, color, religion, sex, and national origin)
- Americans with Disabilities Act (ADA)
- Age Discrimination in Employment Act (ADEA)
- Genetic Information Nondiscrimination Act (GINA)
These laws prohibit employment discrimination based on the following categories:
- Race
- Color
- Religion
- Sex (including gender identity, sexual orientation, and pregnancy)
- National origin
- Age (forty and older)
- Disability
- Genetic information (including family medical history)
The EEOC also notes that employers may ask an applicant about their criminal history, but they must exercise caution because employers cannot treat people with criminal records differently based on their national origin or race. In addition, the EEOC cautions employers against asking whether an applicant is a US citizen. And the Uniformed Services Employment and Reemployment Rights Act (USRRA), which ensures that service members do not face discrimination stemming from their past, present, or future military service, can make it dicey to ask about a person’s service record.
Several other federal laws prohibit discrimination in the employment context or include employment-related antidiscrimination provisions:
- Equal Pay Act
- Pregnancy Discrimination Act (a 1978 amendment to Title VII of the Civil Rights Act of 1964)
- Family and Medical Leave Act
- Employee Retirement Income Security Act
As noted, state and local governments may also have laws that limit an employer’s inquiries when considering a job applicant. Such laws can limit the use of criminal background checks and credit checks, prohibit an employer from inquiring about an applicant’s salary history, or require a job poster to report the salary or pay range in their job listing.
For example, thirty-seven states and Washington, DC, have “ban the box” laws for conviction and arrest records, but these laws vary significantly. Some of these laws apply only to private sector employees but others do not. That is why employers should always consult with a local employment attorney as they develop recruiting, interviewing, and hiring policies.
Employment Discrimination Lawsuits: More Common Than You Might Think
Ignorance of the law is never a defense for breaking the law. You may not have discriminatory intent, but simply asking the wrong question, or phrasing a question the wrong way, could give an applicant legal cause to file a discrimination lawsuit against your company. Here are some interview questions that you should always avoid:
- Have you ever filed a workers’ compensation claim? (could reveal a disability)
- Do mental health conditions run in your family? (genetic information)
- Are you biracial? (race)
- Which church are you a member of? (religion)
- Where did you grow up? (ethnic origin)
- When did you graduate from high school? (age)
- Do you have children? Are you planning to have children? (sex)
- What type of military discharge did you receive? (military/veteran)
- What clubs or organizations do you belong to? (could indicate race, sex, national origin, disability status, age, religion, or ancestry)
- What are your childcare arrangements? (potentially violates the ADA, FMLA, and other laws)
You should also steer clear of controversial topics. Do not talk about political affiliations, opinions on LGBTQ-related issues, abortion, religion, gun rights, or anything else that could give the impression that the interview process is skewed. There might be unmistakable signs that the applicant sitting across from you shares many of your strongly held personal beliefs. It is not illegal to silently recognize that the person might be a good fit with your company culture, but a good rule of thumb is to avoid asking questions that are not relevant to the job requirements.
What is known as disparate impact discrimination can be particularly tricky. This might come into play if you use tests or selection procedures to screen applicants. While the test or selection procedure may not explicitly mention or even hint at the Title VII protected categories of race, color, religion, sex, or national origin, if they have the effect of disproportionately excluding persons on these grounds, they could be considered discriminatory.
The risk of being hit with an employment discrimination claim is very real. Every year, tens of thousands of complaints are filed with the EEOC. Although the number of complaints has decreased over the years, in 2021, the EEOC received more than 61,000 allegations of wrongdoing. Not all of these allegations relate to discrimination in the hiring process. However, in fiscal year 2020, the EEOC recovered a record-high $534.4 million for victims of discrimination, including $96.2 million for federal employees and applicants.
The EEOC states in its report that recruitment and hiring are priority enforcement issues. In 2021, disability, race, and sex were the most frequently alleged discrimination claims. A brief survey of EEOC actions shows that companies are paying tens of thousands, hundreds of thousands, and even millions of dollars to resolve these cases.
You Need Legally Compliant, Repeatable, and Streamlined Hiring Policies
In our litigious and divisive social climate where words are often misinterpreted, what you say and do can and will be used against you by applicants, employees, and former employees.
Can you afford the added—and avoidable—cost of a discrimination lawsuit? Just a few hours with a lawyer can help your company develop hiring policies that reduce legal risks and their attendant costs, including reputational harm. Contact our office to set up an appointment.
