Prohibited Practices During the Hiring Process

By Katherine Muniz
September 29, 2017

As an employer, you’re required to comply with federal and local laws in every aspect of your business management. When it comes to staffing your company, there are laws in place to ensure that job applicants aren’t discriminated against or judged with bias. While you may already be up-to-date with the applicable laws, we’ve compiled a brief overview of prohibited practices during the hiring process.

Federal Law

Workplace discrimination is federally prohibited by the U.S. Equal Employment Opportunity Commission or EEOC. Employers may not discriminate in any aspect of employment, and are specifically prohibited from discriminating against an individual based on:

  • Age
  • Race
  • Religion
  • Disability
  • Gender (including gender identity and sexual orientation)
  • Genetic Information
  • National Origin
  • Pregnancy

Under the laws enforced by EEOC, employers are prohibited from being discriminatory in policies and practices regarding:

  • Job Advertisements
  • Recruitment
  • Application & Hiring
  • Background Checks
  • Job Referrals
  • Job Assignments & Promotions
  • Pay and Benefits
  • Discipline & Discharge
  • Employment References
  • Reasonable Accommodation & Disability
  • Reasonable Accommodation & Religion
  • Training & Apprenticeship Programs
  • Harassment
  • Terms & Conditions of Employment
  • Pre-Employment Inquiries

For more on each of these policies and practices, visit EEOC’s direct website for further reading.

Here are a few examples of illegal discriminatory practices sourced from the EEOC website:

  • It is illegal for an employer to publish a job advertisement that shows a preference for or discourages someone from applying for a job because of his or her race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.
  • An employer may not base hiring decisions on stereotypes and assumptions about a person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.
  • It is illegal for an employer, employment agency or union to take into account a person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information when making decisions about job referrals.
  • When deciding which employees will be laid off, an employer may not choose the oldest workers because of their age. Employers also may not discriminate when deciding which workers to recall after a layoff.
  • If an employer requires employees to take a test before making decisions about assignments or promotions, the test may not exclude people of a particular race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), or national origin, or individuals with disabilities, unless the employer can show that the test is necessary and related to the job. In addition, the employer may not use a test that excludes employees age 40 or older if the test is not based on a reasonable factor other than age.

There are occupational exceptions that can be made in cases where a “bona fide occupational qualification” (BFOQ) exists. For instance, if an occupation requires heavy lifting, it’s necessary that whoever is appointed to the job is capable of lifting and has physical stamina. Employers may discriminate on certain traits if they are deemed valid and necessary in performing the job.

While this applies in every aspect of the hiring process, there are many questions employers should avoid asking in the interview stage. FindLaw, a legal information portal, has provided the following questions to avoid asking:

Employers are also required to provide reasonable accommodations to job applicants with a disability unless doing so would cause significant difficulty or expense for the employer. Employers are also required to reasonably accommodate an employee’s religious beliefs or practices unless doing so would cause difficulty or expense for the employer.

If an applicant raises questions related to the above topics during a job interview, you may discuss these topics to the extent necessary to answer the applicant’s questions.

Local Law

The EEOC may be the federal agency that administers and enforces civil rights laws against workplace discrimination, but local laws also exist that further compel employers to abide by additional rules regarding the hiring process.

For instance, Chicago’s paid sick leave ordinance requires employers to specifically exclude credit history from the hiring process, says Employment Attorney J Bryan Wood, Founder of The Wood Law Office LLC.

“Chicago’s ordinance prohibits discrimination in hiring based on ‘credit history,’ but that limitation is different than the Illinois state law on the same subject,” he says. “The key for employers is identifying the most restrictive laws or ordinances applicable where they do business and complying with those – or at least being aware of the risks of non-compliance.”

Although the 21st century is a more modern, inclusive time, it’s important to stress that workplace discrimination in any capacity is illegal. In discussing the forbidden questions and personal topics that are off-limits when interviewing job applicants, the playing field needs to be level for everyone during the entirety of the hiring process and beyond.

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