Looking to place an ad or job posting for a new employee? Did you know employers can be liable to all applicants whether the applicant is even given an interview? Job applicants have legal rights even before they become employees. Under both federal and state law, an employer cannot illegally discriminate in its hiring process.
An employer cannot discriminate on a job applicant’s race, national origin, gender, pregnancy, age, disability or religion. Although an employer may never have been accused of discriminating in its hiring process, their hiring process may still be inherently discriminatory.
Employers must abide by anti-discrimination laws at each stage of the hiring process. This includes the actual placed job ad, to the interviews conducted, and to the final selection of the candidate hired.
Queries To Avoid
When placing an advertisement for a job or when conducting an interview of a job applicant, the employer must avoid questions relating to the protected classes shown above. The job ad or the interview of the candidate should avoid questions that pose or ask:
- The applicant’s race;
- The applicant’s religion;
- The applicant’s sexual preference;
- The applicant’s age (other than inquiring whether over the age of 18);
- The applicant’s marital status;
- The applicant’s citizenship status;
- Whether the applicant has children or intends to have children;
- Whether the applicant suffers from a disability;
- Whether the applicant suffers from or suffered from a drug or alcohol dependency;
- And many more.
If an applicant raises questions related to any of the above areas, the employer may discuss the topic likely without later facing legal repercussions.
After a candidate is selected
Once the interview process is completed and the candidate is selected as a new hire, there are many tasks the employer must do before the employee may begin working. The employer must avoid discriminating the new hire during these tasks. As employers are aware, these will include obtaining federal employment ID’s for the new employee with the IRS; setting up the employee’s pay system to withhold taxes paid to the IRS; obtaining worker’s compensation insurance over the employee; assisting with employee benefits; reporting federal unemployment tax to IRS; and communicating the policies and expectations of the company to the new hire.
If at any step in the hiring process an applicant or new hire believes they were discriminated against, a charge may be brought to the Equal Employment Opportunity Commission (EEOC) regarding the alleged violation. The discrimination is likely also covered by state and local laws.
Additionally, employers should take caution to avoid making any promises to an applicant or new hire, as any statements could result in an implied contract, which later may be considered breached by the employer.
As one can see, prior to and during the hiring process, applicants enjoy all the protections of anti-discrimination laws just as employees do. If you believe any aspect of your hiring process may be discriminatory, we recommend you consult with an attorney.