Applicants are protected by legal rights long before they become employees. Under state, federal, and some local laws, potential employees have extensive protections during the job application and hiring process. Depending on a variety of factors, including the way the job is advertised, whether a background check was conducted, whether the applicant was asked to take a pre-employment test, and what was said and asked during the employment interview, you may be able to take legal action if you were not hired for a specific position.
There are several federal statutes that govern employment decisions, all of which must be applied uniformly throughout the United States. Hiring decisions that violate the Americans With Disabilities Act of 1990, the Pregnancy Discrimination Act of 1978, the Age Discrimination in Employment Act of 1975, the Fair Labor Standards Act of 1938, Title VII of the Civil Rights Act of 1964 (often simply referred to as “Title VII”), or any other federal anti-discrimination law provide injured parties with legal basis for a lawsuit. The Title VII protected characteristics include race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability, and genetic information. Furthermore, many states have expanded the reach of anti-discrimination laws to cover hiring decisions based on sexual orientation, gender identity, pregnancy status, and other factors.
Employers are prohibited from publishing job advertisements that show preference for, or discourage an individual 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. For example, job advertisements that use words such as “females” or “recent college grads” may discourage men and people over 40 from applying and thus, may violate the law.
Generally. As a general rule, any information requested and obtained during the pre-employment process should be limited to that necessary to determine whether a person is qualified for the job.
Employers are explicitly prohibited from making any pre-offer inquiries about the applicant’s disability status.
When an employer asks an applicant about their background, it must treat the applicant the same as anyone else, regardless of race, national origin, color, sex, religion, disability, genetic information (including family medical history), or older age (40 or older). For example, an employer is not allowed to ask for extra background information because the applicant is of a certain race or ethnicity.
Employers have a lot of latitude in the kind and degree of questions they may ask applicants. State and federal equal opportunity laws do not expressly forbid employers from making pre-employment inquiries that relate to an applicant’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. However, if an applicant files a claim alleging discrimination during the hiring process, such inquiries may be used as evidence of the employer’s intent to discriminate, unless the employer can justify asking the question for a business purpose. For example, asking questions about marital status, plans to have children, drug and alcohol use, and national origin may indicate the employer’s discriminatory intent.
Background Checks. When an employer is making personnel decisions, including hiring, they may want to consider the backgrounds of the applicants. While employers are entitled to perform background checks on employees before hiring them, there are several notable limitations.
The Federal Trade Commission (FTC) enforces a federal law that regulates background reports for employment, and the Equal Employment Opportunity Commission (EEOC) enforces federal laws against employment discrimination.
Some employers may attempt to determine information regarding the applicant’s background by hiring someone to do a “background report.” The most common are credit reports and criminal background reports. Special rules apply when an employer receives a background report about the applicant from a company in the business of compiling background information. First, the employer must ask the applicant for written permission before getting the report. Second, if the employer thinks it may not hire the applicant because of something in the report, it must give the applicant a copy of the report and a “notice of rights” that tells the applicant how to contact the company that made the report.
The Federal Bankruptcy Act makes it illegal for a potential employer to base their hiring decision on a person’s past bankruptcy or debt the applicant had before filing bankruptcy.
Criminal History. Federal law does not prohibit employers from asking about an applicant’s criminal history. However, there are two ways employers may not use an applicant’s criminal history during the hiring process. First, federal law requires employers to treat applicants with similar criminal histories the same. An employer may not treat applicants with similar criminal records differently based on their race, national origin, or any other characteristic protected by Title VII of the Civil Rights Act of 1964. For example, there is Title VII liability where the evidence shows that an employer rejected an African-American applicant based on his criminal record but hired a similarly-qualified white applicant with a comparable criminal record.
Title VII also prohibits employers from using a neutral policy or practice to screen out individuals based on criminal history, if (1) the policy or practice significantly disadvantages Title VII-protected individuals and (2) the employer fails to demonstrate that the policy or practice is related to the job in question. In this situation, it does not matter whether the employer applies the screening policy equally. If it harms members of a protected class more than others, it is illegal, unless the employer can prove that the policy is job-related and consistent with business necessity. For example, statistics show that African-Americans and Latinos face higher conviction rates than whites. Thus, a policy that simply screens out applicants with criminal convictions will screen out more African-Americans and Latinos than whites. If the employer does not demonstrate that the screening policy is related to the job in question, then the screening process violates Title VII.
In today’s workforce, finding a job requires more than filling out an application and submitting a resume and cover letter. More employers are using pre-employment tests to determine which candidate in a pool of applicants is best qualified to perform the required job. These tests can range from standard drug screenings and skills tests to more advanced psychological and personality tests.
If an employer requires job applicants to take a test, the test must be proven to be necessary and related to the job, and the employer may not exclude people of a particular race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, or individuals with disabilities. Additionally, the employer may not utilize a test that excludes applicants age 40 or older if the test is not based on a reasonable factor other than age.
Protected Equal Employment Opportunity Activity. The Equal Employment Opportunity laws prohibit punishing job applicants for asserting their rights to be free from employment discrimination. Asserting these rights is called “protected activity,” and it can take multiple forms. It is unlawful to retaliate against applicants for any of the following:
Participating in a complaint process is protected from retaliation under all circumstances.
Protected Workers’ Compensation Activity. Although federal law does not include a prohibition against workers’ compensation retaliation, many states have adopted such protection as a necessary safeguard against employer abuse. State laws regarding workers’ compensation hiring discrimination vary; however, many states protect against discrimination based on an applicant’s prior workers’ compensation claim history and categorize such discrimination as a violation of federal law prohibiting discrimination based on disability.
Learn more about the hiring process by visiting the following sections:
Job Advertising and Applicant Screening
Employment Contracts, Benefits, and Job Descriptions
Hiring Teenagers, Veterans and Part-Time Workers
Hiring Resources and Definitions
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