One of the keys to your company’s success is ensuring you have the right individuals working for you and representing your company. Properly selecting and hiring the ideal candidate is the first step in building a successful team for your company. In the first of a three-part series dedicated to employment law, we will provide you with a number of recommendations to help you navigate the hiring process, with a specific focus on avoiding discriminatory practices during recruitment and hiring.
Prior to embarking on the hiring process, it is essential that all companies abide by a strong non-discrimination policy. Anti-discrimination laws mandate that employers cannot discriminate against an applicant because of a protected class or based on stereotypes and assumptions associated with an applicant’s protected class. This article will focus on compliance with federal law, focusing on Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1976 (“ADEA”), and the Americans with Disabilities Act of 1990 (“ADA”). It is our hope that we can make some of the requirements of Title VII clear to you and illustrate the importance of complying with this law.
Among other things, Title VII requires employers to avoid using unlawful considerations of protected classes created by applicable federal, state, or local laws. These protected classes include race, color, religion or creed, gender/sex (including pregnancy), sexual orientation, national origin or ancestry, ethnicity, citizenship status, genetic information, military or veteran status, age (forty or older), and physical or mental disability Additionally, an employer cannot base hiring decisions on stereotypes and/or assumptions associated with a person’s protected class. Title VII applies to employers with 15 more employees, including federal, state and local government.
While the requirements of Title VII seem somewhat intuitive, there are other applicable federal, state, and local laws, that create a complex and comprehensive regulatory scheme. We recommend that you consult an attorney who practices employment law in your state for further information.
Advertising and Recruitment:
Employers should be conscious of their advertising practices for unintentional discriminatory recruitment. It is illegal for an employer to publish a job advertisement that indicates a preference for or discourages applicants because of their race, color, religion, sex, national origin, or disability. This kind of discrimination creates a disparate impact, meaning the hiring practice has a disproportionately adverse effect on protected groups and is barred under Title VII, 42 U.S.C. § 200 et seq. Employers can be liable for disparate-impact discrimination regardless of whether they possess an intent to discriminate or not. As an employer, it is therefore crucial that you word your advertisements correctly.
For example, an advertisement that seeks recent college graduates could be in violation of Title VII for discrimination against applicants based on age because it may deter older applicants from applying to the position. Employers should instead focus on job specific qualifications and key skills that directly relate to an applicant’s ability to perform the desired job successfully. When writing the job description, we suggest you list the duties and qualifications in an objective manner and avoid any language that suggests a preference for any protected class. Additionally, you should include language which states that you are an equal opportunity employer and refrain from using any discriminatory hiring practices.
Interviewing Applicants:
In general, information obtained from applicants should be limited to information essential for determining if a person is qualified for the job. Title VII does not explicitly prohibit employers from making pre-employment inquires related to protected classes, but you should be able to justify your interview questions by being able to demonstrate how the questions relate to a specific business purpose.
If an employer has a legitimate need to collect information about an applicants’ protected class for affirmative action or tracking purposes, an employer may obtain such information. However, the employer should obtain the information in a way that enables employers to keep an applicant’s protected information separate from information used to determine if a person is qualified for the job. The EEOC suggest that employers use “tear-off” sheets, which allows applicants to provide certain protected information that will be removed from the application without any identifying information such as the applicant’s name or social security number. This method can be used for collecting various demographic information, such as an applicant’s race, ethnicity, or gender.
National Origin and Citizenship
Questions such as whether an applicant is native-born, what the applicant’s first language is, and where the applicant’s relatives were born are prohibited under Title VII. Employers are strictly prohibited from asking any interview questions related to an applicant’s national origin. However, you can obtain similar information by requiring proof of a work permit after an offer of employment has been made. You can also ask applicant’s if they are a U.S. citizen or if they have plans to obtain citizenship to better gain an understanding of the applicant’s ability to work in the U.S.
Religion
Generally, questions related to an applicant’s religion should be avoided entirely during the interview process. Unless an applicant’s religious affiliation or beliefs are a bona fide occupational qualification, meaning that qualification is reasonably necessary to the normal operation of the business, employers cannot ask applicant’s directly about their religious practices. However, religious corporations, associations, educational institutions, and societies are exempt from federal employment law regarding religion, and therefore can ask what religious group an applicant is affiliated with. In other words, employers whose purpose and character are primarily religious are permitted to favor applicants of the same religion. For all other employers, you may ask questions related to an applicant’s days of worship or religious holidays but only after the applicant is hired. You may also inform the applicant of normal work hours while conducting interviews to avoid any conflict with days of worship.
Disability
Under Title VII and the Americans with Disabilities Act (“ADA”), employers cannot ask disability related questions or require medical examinations until after a job offer has been made. The ADA makes it unlawful to discriminate in employment against a qualified individual with a disability and applies to all employers with fifteen or more employees. To comply with these requirements, an employer can still require that an applicant satisfy job requirements for educational status, employment experience, skills, and any other qualification standards, but an employer cannot simply rule out the applicant because of his or her disability status. From an interviewing standpoint, you should ask an applicant about his or her ability to perform job-related functions, or to describe or demonstrate how the applicant will perform with or without a reasonable accommodation. Additionally, if an applicant has identified a disability, you can ask the applicant to indicate how and to what extent the applicant is disabled as it relates to the job. However, you may not ask the applicant directly if he or she is disabled or phrase performance related questions in terms of a disability. Instead, you must wait until the applicant informs you of the disability.
Age
The Age Discrimination in Employment Act (“ADEA”) applies to employers with twenty or more employees and protects employees and applicants over the age of 40 from discrimination in the workplace on the basis of their age. Age discrimination involves treating an applicant less favorably because of his or her age. Therefore, interview questions that suggest a preference towards younger workers or explicitly state an age preference should be avoided. For example, on May 3, 2018, a class-action age discrimination lawsuit between the EEOC and Seasons 52 restaurant chain reached a settlement agreement after allegations of discriminatory interview questions regarding the age of applicants. Over 135 applicants provided sworn testimony that Seasons 52 managers asked them their age or made age-related comments during the interviews suggesting a strong preference for younger workers. The statements included direct statements of age discrimination including “Seasons 52 hires young people,” “most of the workers are younger,” and “we are really looking for someone younger.” In addition to monetary relief, Seasons 52 is required to make significant changes to its recruitment and hiring processes.
To comply with the ADEA, we suggest employers avoid questions regarding an applicant’s age during the interview and instead focus on questions regarding the applicant’s ability to perform the job. Employers should ask applicants if they can provide proof that the applicant is of legal working age but other questions such as what age group a candidate is in should be avoided.
Conducting Background Checks:
Background checks can often reveal helpful information for employers to include in their hiring decision. Such information includes work history, education, criminal records, and the use of social media. While it is not illegal to conduct background checks on applicants, employers still must comply with Title VII nondiscrimination requirements when using them during the hiring process.
It is important to note that using criminal history information to make employment decisions may violate Title VII. Under Title VII, employers are prohibited from treating people with similar criminal records differently because of their race, national origin, or other protected characteristic. While Title VII does not explicitly prohibit discrimination on the basis of a criminal record, most states have enacted laws that prohibit employers from denying employment to an applicant solely on the basis of a prior criminal conviction. Illinois for example, has enacted the Job Opportunities for Qualified Applicants Act which prohibits employers with fifteen or more employees from asking about a criminal history until the later stages of the application process. Under the law, employers may not ask or consider an applicant’s criminal history until they have determined the applicant to be qualified and notified the applicant of an interview. Additionally, in Illinois employers cannot ask about arrests that did not lead to a conviction or records that have been sealed or expunged.
While there is no federal law governing discrimination on the basis of a criminal record, the EEOC has published guidance on how employers can screen applicants whose criminal records pose concern without engaging in discrimination. Employers should look at each offense on an individual basis and consider the nature and gravity of the offense or assess the potential effect on the employer’s business. Additionally, employers should look at when the offense occurred and the nature of the job to determine how relevant the conviction is to the applicant’s ability to perform job duties. In addition, the EEOC suggests that employers give applicant’s an opportunity to explain the circumstances surrounding the conviction and provide mitigating information showing that the employee is a qualified applicant.
Conclusion:
The hiring process can have a direct and critical impact on the success of your business. The addition of each new employee should be viewed as a step forward, but mistakes during the hiring process can force a business two steps back. If you have any questions about any of our recommendations or the information contained in this article, or if would like to speak with us more generally, please call us at (312) 291-1226 or email us at clients@theumalawgroup.com.
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