Updated July 13, 2020:

Hiring Discrimination

Hiring discrimination is the refusal to hire a job applicant because of his or her race, nationality, gender, family status, age, disability, religion, or sexual orientation.

Treating a person unfairly due to any of the factors noted above is discrimination. Sometimes, mistreatment is blatant and includes unwelcome behaviors, such as the use of racial slurs or demotion. Other times, it is less obvious. Regardless, anytime someone treats a person differently than others in the workplace, it is discrimination.

Asking Appropriate Interview Questions

There are certain questions an employer should avoid asking during the interview process. These include questions that relate to topics protected by discrimination laws, such as:

  • Current or future children

  • Marital status

  • Race

  • Religion

  • Sexual preference

  • Age

  • Disabilities

  • Citizenship status

  • Drug or alcohol use

If the applicant has questions about any of these topics, it is acceptable for the employer to answer the questions. However, the employer should only give the necessary information and refrain from opening up a further conversation on the subject.

Before, during, and after the hiring process, employers must follow a variety of discrimination laws. There are laws on every part of the hiring process, including posting the job ad, interviewing candidates, and selecting the new employee. All these laws help protect the rights of the job candidate. If an employer makes a hiring decision based on a candidate's race, sex, disability, religion, or other factor protected by discrimination laws, the candidate could file a discrimination claim.

In a recent study, researchers found that recruiters often do not discriminate based on their own bias. Rather, they're concerned about their customers' biases. They found that people with "typically black" names faced higher levels of discrimination when looking for a customer-focused job. However, for jobs where customer focus did not matter, discrimination greatly decreased.

Many states have laws about discrimination based on:

  • Credit reports

  • Criminal history

  • Previous workers' compensation claims

In some rare cases, employers may need a sex-specific trait to fill a certain job role. Under bona fide occupational qualification (BFOQ), employers can discriminate during the hiring process based on such needs.

Understanding the Hiring Process

There are several tasks an employer must do before each new employee begins work, such as:

  • Getting a federal employer identification number from the Internal Revenue Service (IRS)

  • Registering for payment of unemployment compensation taxes

  • Putting a system in place to withhold tax funds for the IRS

  • Securing compensation insurance

  • Establishing an illness and prevention plan for the Occupational Safety and Health Administration (OSHA)

  • Posting workplace notices per the Department of Labor (DOL)

  • Setting up employee benefits

  • Reporting federal unemployment tax to the IRS

There are a few main situations when hiring discrimination may result in legal action. If the employer used information that was not legally available to make their hiring decision, the candidate may have grounds for a lawsuit. A legal case could also arise if the employer misled or lied to the applicant.

What Qualifies as Fraud?

Fraud happens when an employer makes statements that mislead the candidate, such as misrepresenting the company or the role to get the person to take the job or telling the person they have the job when they do not. If the employee makes his or her decision to work for the company based on these decisions, there could be a negative impact, especially if the person quits their current job to take the new one. Depending on the situation, the candidate could file a fraud or wrongful termination claim.

When speaking with job candidates, employers must take care not to make any false promises that could result in a breach of an implied contract. Any damages from such a breach become the employer's responsibility.

Making a Claim Against a Past Employer

If an employer rejects a candidate for a job based on information from a former employer, the candidate may have grounds to file a legal claim against the former employer. Discrimination laws prohibit employers from retaliating against former employees in a way that prevents that person from getting a new job, such as making false or reputation-damaging statements. If the former employer makes such statements, the candidate may have the right to file a defamation claim.

If a job candidate or new employee believes their rights were violated during the hiring process, it is a good idea to discuss the situation with an employees' rights attorney.

If you need help with hiring discrimination, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. They come from law schools such as Harvard and Yale and average 14 years of legal experience, including work with companies like Google, Menlo Ventures, and Airbnb.