Employment Best Practices: Pre-Employment Phase
The term “employment discrimination” is frequently tossed around by workers and employers but what does it really mean and how can employers limit their exposure to these types of employment claims during the pre-employment or hiring phase? This Employment best practices post will provide a basic primer on pre-employment screening and hiring laws and provide some suggestions for ensuring compliance.
Laws Against Discrimination and Protected Classes
All employees are entitled, as part of their civil rights pursuant to the Constitution of the the United States and most state constitutions, to employment free from unlawful discrimination. At the federal level, the Equal Employment Opportunity Commission (“EEOC”) regulates, promulgates and enforces federal laws that make it illegal to discriminate against a job applicant or an employee based upon a variety of factors.
Federal law, pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), Title 1 of the Americans with Disabilities Act of 1990 “(ADA”), the Age Discrimination in Employment Act of 1967 (“ADEA”) and related laws, prohibits discrimination by employers on the basis of race, color, sex, religion, national origin, age, disability, and genetic information, as well as reprisal for protected activity. These categories are known as “protected classes.” Included in these broad classes are sexual preference and pregnancy.
Separately, most if not all states, have their own laws concerning workplace discrimination. In some cases, the state laws may supersede federal law, especially in situations where the state law is broader than federal laws. For example, New Jersey’s Law Against Discrimination (“LAD”) adds additional protected classes to its statue making it stricter than federal laws. Contractors need to be aware of both federal and state employment laws in order to make certain that they are complying with the law.
Job Applicant Discrimination Discrimination 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.
Does an Employer Have to Hire an Applicant Who is a Member of a Protected Class to Avoid Discrimination?
A common question asked by employers is, do they have to hire an applicant who has a disability simply to avoid liability and discrimination claims? The answer is “no”, so long as the protected class applicant is not being hired based upon his/her class status or disability.
In general, an employer is free to select the most qualified applicant available and to make decisions based on reasons unrelated to a disability. For example, assume that an essential function of a particular job requires the applicant to be able to lift at least 50 pounds and two people apply for the job, one of whom has a disability. The person with the disability can only lift 10 pounds but the other applicant can comfortably lift 50 or more pounds. The employer is free to hire the applicant who can lift 50 pounds as this ability is required for the successful performance of the job.
Summary
Employment discrimination and harassment issues are complex, and lawsuits for these claims can be extremely costly. Many discrimination claims arise from pre-employment screening and hiring procedures. Contractors who are hiring employees should take care to avoid basing any hiring decisions upon race, color, sex, religion, national origin, age, disability, and genetic information. It is also important for employers to be aware of both federal and state employment and discrimination laws.
Navigating the complexities of pre-employment screening and hiring laws is essential for protecting your business from costly discrimination claims. Whether you need guidance on creating compliant hiring policies or addressing specific employment concerns, the Law Offices of Peter J. Lamont is here to help.
Our team has extensive experience in employment law, providing personalized advice to businesses of all sizes. Contact us today to discuss how we can assist you in staying compliant and safeguarding your company. Call 201-904-2211, email us at info@pjlesq.com, or visit our website at pjlesq.com to learn more.
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For detailed insights and legal assistance on topics discussed in this post, including litigation, contact the Law Offices of Peter J. Lamont at our Bergen County Office. We're here to answer your questions and provide legal advice. Contact us at (201) 904-2211 or email us at info@pjlesq.com.
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About Peter J. Lamont, Esq.
Peter J. Lamont is a nationally recognized attorney with significant experience in business, contract, litigation, and real estate law. With over two decades of legal practice, he has represented a wide array of businesses, including large international corporations. Peter is known for his practical legal and business advice, prioritizing efficient and cost-effective solutions for his clients.
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As the founder of the Law Offices of Peter J. Lamont, Peter brings his Wall Street experience and client-focused approach to New Jersey, offering personalized legal services that align with each client's unique needs and goals.
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