The U.S. Equal Employment Opportunity Commission is responsible for enforcing federal laws which make discrimination aginst a job applicant or employee because of their protected class (race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information). See my Civil Rights and Discrimination webpage for more information.  This page covers some current issues with employment discrimination.  Most employers with at least 15 employees are covered by EEOC laws, as are most labor unions and employment agencies. The laws apply to every employment action concerning employees and potential employees including hiring, firing, promotions, harassment, pay and benefits, and training. Besides prohibited blatant discrimination, the laws prohibit neutral employment policies or practices that have a disproportionate negative effect on applicants or employees who are in a protected class if the policies/procedures are not necessary to the operation of the business.

Some particular problems are listed below.

Background Checks:

    Background checks which include a criminal record check or credit check could be determined to be discriminatory. The Equal Employment Opportunity Commission (EEOC)and the courts have targeted employers who do certain background checks. This is because it has been determined that criminal records and negative credit have a negative impact on hiring black and Hispanic males. The filed suit on October 1, 2009 against Freeman, a nationwide convention services company because it unfairly discriminated against black, Hispanic, and male job applicants for these reasons. El. V. Septa, 479 F.3D 232 (3^rd Cir. 2007) was the first significant case involving the use of credit reports and criminal records to deny employment. This case involved a 40-year-old second degree murder conviction to deny employment in a company with a “bright-line” policy of rejecting applicants with convictions for violence. Professor Alfred Blumstein at Carnegie Mellon University has conducted a study that suggests that for as little as 5 years , a person with a criminal record is no more likely to re-offend than a person without a criminal record.

    Inquiries about an applicant's current or past assets, liabilities, credit rating, bankruptcy, garnishment, bonding, car ownership,
rental or ownership of a house, length of residence at an address, charge accounts, furniture ownership, or bank accounts should be avoided due to disparate impact on minorities and females unless the information is essential to the job.

    Questions about arrest records should be avoided, as there is no connection to whether a person actually committed the offense unless conviction records are reviewed.  If an arrest must be questioned, the applicant should be allowed to explain the circumstances and take reasonable efforts to review whether the explanation is reliable.  Some states prohibit questions about arrests

    Thus programs that have a blanket policy against hiring a person with a criminal record or a poor credit score can give preference to whites and have a disparate impact (protected groups unfairly treated and rejected in higher numbers). A background check must have some bearing on the applicant’s suitability for that particular job. If a background check is not needed, it may be safer to eliminate the background check or at a minimum the criminal record check or credit check. Screening software to make an automated decision should be avoided.  In fact, employers should review hiring practices to ensure that any tools used to screen and review applicants validly predicts which applicants to hire and their future job performance and that the tools do not have a disparate impact.  In particular criminal records should not be used to automatically reject an applicant.  There must be a business necessity that precludes hiring those with criminal records.  The EEOC advises that employers should take into account the nature and gravity of the crime, nature of the job, and age of the offense.  Credit reports should also be used with caution and tied only to jobs with positions involving cash, assets, or fiduciary duties.

Harassment:

     It is illegal to harass an employee because of his/her protected status, or to harass someone who has complained about discrimination, filed a discrimination charge, or participated in a discrimination investigation or lawsuit.  Harassment includes slurs, graffiti, offensive or derogatory comments, conduct, requests for sexual favors, unwelcome sexual advances, a hostile or offensive work environment, or adverse employment decisions.  Harassment can also occur outside the workplace if there is a link with the workplace.

Job Advertisements:

     If a job advertisement shows a preference for or discourages application due to the person's protected status, the job advertisement could be illegal.  A job advertisement seeking "females" or "recent college graduates" have been determined to discourage men and persons over 40 from applying and could violate laws.


Recruiting Practices:

     If an employer seeks employees through means that discriminates, the employer could violate the law.  For example reliance on word-of-mouth recruitment could violate the law if the work force is mainly of one national origin and all the new recruits are also of the same national origin.

    Employers may also not refuse to give employment applications to people of a certain race and may not base hiring decisions on stereotypes and assumptions about people of a protected class.

    Employment tests are a frequent problem.  The test must be necessary and job related and without a disparate impact.

    Handicap accomodations must be made for job applicants if an applicant has a disability that needs an accomodation unless the accomodation causes the employer significant difficulty or expense.


Pre-Employment Questions:

     In general, it is assumed that pre-employment questions are utilitzed for hiring decisions.  Thus, questions should be limited to determining if a person is qualified for a job, avoiding questions concerning a person's protected status.  Disability questions are explicitly prohibited.   Questions concerning activities that could be viewed as discriminatory questions should be avoided.  Thus questions about clubs and organizations, sororities and fraternities, lodges, and societies should be avoided as they could inadvertently be discriminatory.  Employers should also not request a photograph until after an offer of employment.

    Height and weight requirements can disproporitionately impact protected groups.  Unless the employer can demonstrate a job need, these questions should be eliminated.

    Religious affiliation questions are almost always inappropriate unless religion is a bone fide occupational qualification (BFOQ).  Religious corporations, associations, educational institutions, or societies are exempt from the federal laws concerning religious discrimination (but other protected classes still apply).  Problems with religious questions include not just asking about religious affiliation, but days of worship, religious holidays, and references from religious leaders.

     Employers cannot ask if a job applicant is a U.S. citizen before making the offer of employment.  The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for employers to discriminate based on citizenship or immigration status in hiring, firing or recruitment.  Employers may not hire only U.S. citizens unless required to do so by law, regulation or government contract.  In the same law however, employers must verify the identity and employment eligibility of all employees by use of the I-9 Form and must review documents showing the employee's identity and employment authorization.  Employers cannot reject valid documents or insist on additional documents.  As long as the document appears to be reasonably genuine on its face and relates to the employee, it must be accepted.  Because of possible discrimination issues, the employment eligibility should be completed after an offer to hire has been made.

     Questions about marital status and number and ages of children can be used to discriminate against women and should be avoided.  These questions may be valid questions concerning insurance or other benefits and should be asked only after an offer to hire.  Additionally questions about pregnancy, plans for future children, abortions, birth control, child care, name and address of spouse, and whether the applicant intends to marry should be avoided.

    Disability-related questions or requiring a medical examination (and only if all new employees are required to take the exam or as documentation to support a request for accommodation) are prohibited until after the applicant has been offered a job. Questions about reasonable accommodation are allowed if the applicant may need accommodation because of an obvious or voluntarily disclosed disability or where the applicant has disclosed a need for accommodation.  Questions about the nature or severity of the disability are prohibited.  An employer may ask the applicant whether he/she can perform the job and how he/she would perform the job.  Additionally all medical records must be kept confidential and separate from employment records and HIPA is applicable to the records.

Pay and Benefits:

     Discrimination in payment of wages or benefits is illegal.  However, in some circumstances employee benefits for older workers may be reduced but only if providing the reduced benefits is the same as the cost of providing benefits to younger workers.


Layoffs or discharge:

     Employers may not choose the oldest workers for layoffs because of their age.  Employers may also not discriminate when recalling workers after a layoff.

     Discharge may be prohibited if the discharge is due to the person's protected class or as a result of filing a discriminatory complaint.  Additionally, constructive discharge may occur if the workplace is so hostile that the employee must resign, and constructive discharge can lead to discriminatory charges.

References:

      An employer may not give a negative or false employment reference or refuse to give a reference due to a person's protected status.

Dress Code:

      An employer may establish a dress code, but must not treat some employees less favorably due to national origin.  A dress code could be required even if it conflicts with ethnic beliefs or practices.  However, if the dress code conflicts with religious practices or the employee requested an accommodation, the employer must modify or permit an exception unless an undue hardship results.

Genetic Information:

      An employer may never use genetic information in employment decisions, as it is unrelated to the ability to do the job.

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