Originally published in November 2020.
Discrimination in Hiring
We all know that terminating an employee may lead to a charge of discrimination. But it can happen at the other end of the employment lifecycle, too – the hiring process.
Discrimination in hiring is as illegal as discrimination in firing. People don’t sue you for hiring them, but those whom you don’t hire might. So how do you reduce the odds?
Protected Classes
First, do not discriminate. That should be obvious. What’s less obvious is that you shouldn’t even create an appearance that you MIGHT be discriminating. As you recall from our last episode, under federal law, protected classes include the following: age, disability, national origin, color, race, religion, and sex, including pregnancy discrimination. That’s under federal law. Individual states and localities may include additional protected classes, so always check with local counsel for the lay of the land.
If you can’t fire someone for falling within a protected class, you can’t refuse to hire someone for falling within a protected class. And here’s the real point of this episode: you shouldn’t ask questions in an interview, or mention in an employment ad, anything that touches upon a protected class status.
For example, it is illegal to discriminate against women who are pregnant or may become pregnant. So if you ask a female applicant if she intends to have children, that’s a no-no. That’s obvious. But what if the applicant sees a picture of your seven kids in your office and asks you about them? You might want to continue that line of conversation and ask about her kids. It’s just normal, polite conversation. Don’t do it. If she says she hopes to have a family and you don’t hire her, you’ve created the appearance that you discriminated, even if she’s unqualified for the job. People have been sued for less.
Questions You Should Never Ask a Job Applicant
Here's a list of questions you should never ask a job applicant. What they have in common is that they touch upon protected class status. This list is not exhaustive, but should give you the idea:
When did you graduate? Age can be estimated from graduation years, and it is against the law to discriminate against people over 40.
I love your accent. Where are you from? Or, are you an American citizen? Or, what language do you speak at home? National origin is a protected class. ‘Nuff said.
Do you have any disabilities? If an applicant comes in with a seeing-eye dog, this is self-evident. But not all disabilities are obvious – think epilepsy or Lyme Disease – and many disabilities are protected under the Americans With Disabilities Act.
What church do you attend? Unless your dealership is a church, don’t go there. Religion is a protected class.
So yes, you may hire employees without getting sued – provided you don’t discriminate or create the appearance of discrimination. Every. Single. Time.
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