Avoiding Discrimination Claims When Hiring Employees
1. Applicant Discrimination
Under federal law, it is illegal for an employer to discriminate against a job applicant who is a member of one of the protected classes listed above. For example, it is unlawful for an employer to refuse to provide a job application to someone because of the sex, age, or race. To avoid liability, Contractors should provide applications to everyone who requests one. This does not mean that a contractor would be forced to hire someone who is not qualified for the position, it simply means that you are giving everyone an opportunity to apply.
2. Pre-Employment/Interview
Every employer wants to make certain that applicants are qualified for the positon and want to obtain as much information about the person as possible. Most of this information is obtained during the job interview. However, the interview process is not an open forum where the employer can ask anything they want. In fact, there are a number of topics that are a number of topics that are considered “off-limits” and should never be asked of an applicant.
Under federal law, employers are explicitly prohibited from asking applicants if they suffer from any type of disability. Unlike questions about disability, federal, and most state laws, do not expressly forbid inquiries about race, color, sex, national origin, religion, or age.However, questions about such issues should always be avoided as these inquiries may be used as evidence of an employer's intent to discriminate. As such, employers should avoid inquiries about organizations, clubs, societies, and lodges of which an applicant may be a member or any other questions, which may indicate the applicant's race, sex, national origin, disability status, age, religion, color or ancestry.Additionally, employers should not ask an applicant for a photograph of him/ herself during the pre-employment phase.
3. Background Checks & Criminal History Inquires
In general, it is not unlawful to request or obtain a background check of an applicant. However, the results of the check cannot be used to discriminate against the applicant. Separately, there are some restrictions related to obtaining information about an applicant’s medical and genetic information.
It is important to note that individual states may have additional requirements concerning obtaining background checks and pre-interview criminal history inquiries.For example, New Jersey, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Mexico and Rhode Island have laws that prohibit an employer from requiring an applicant to complete any job application that makes inquiries about his criminal record during the initial employment process.
If you would like more information about your rights or obligations as an employer or employee please contact me at pl@pjlesq.com or via telephone at (973) 949-3770.