EMPLOYMENT PITFALLS:
Discrimination in Interviewing and Hiring
Federal, state and local antidiscrimination laws identify various employment actions as illegal, including treating employees and applicants differently because of their:
- Race
- Color
- Religion
- Gender
- National Origin
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- Age
- Disability
- Marital Status (state and local laws)
- Ancestry (local laws)
- Sexual Orientation (local laws)
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There are some circumstances where employers may be allowed, in effect, to discriminate. The burden of proving that there is a legitimate basis for discrimination is on the employer, though. Examples of exceptions to the discrimination statutes include:
- BFOQ (bona fide occupational qualification, such as being able to speak Spanish if the tenants are Spanish speaking);
- Business necessity for not allowing a married couple to work together (such as one supervising or auditing the work of the other); and
- Inability to reasonably accommodate a disability.
Discrimination can be proven by actual conduct or a practice that has a disparate impact on a protected class (for example, all employees must be blond; all employees must be at least six feet tall). If an employee or job applicant fits within a protected class, the employee has to show that he or she was not treated differently from other employees or applicants because of his or her status as a member of a "protected class."
Some employers try to avoid discrimination and sexual harassment claims by screening out applicants who could be "troublemakers" before hiring them. More than one employer has told me that he avoids discrimination claims by not hiring women or racial or ethnic minorities or people with disabilities. This strategy will not work, though, because the absence of such employees in the workplace may be used to show that hiring practices have a "disparate impact" on a protected group.
Employment applications are a valuable tool for hiring, but asking the wrong questions can violate the discrimination laws, particularly where the owner or manager has few members of a protected class working for them. Washington State has developed a matrix that addresses common dos and don’ts of pre-employment inquiries, whether they be on the application itself or in the interview process. It should come as no surprise that direct questions about sex, color and religion are not allowed. What follows are examplesof some of the less obvious "Forbidden topics."
FAIR AND UNFAIR PREEMPLOYMENT INQUIRIES
Age
Fair:
Inquiries as to birth date and proof of true age.
Unfair:
Any inquiry not in compliance with the law which implies a preference for persons under 40 years of age.
Citizenship
Fair:
Whether applicant can provide proof of citizenship, visa, alien registration number after being hired.
Unfair:
Whether applicant is prevented from lawfully becoming employed in this country because of visa or immigration status. –or- Whether applicant is a citizen. Requirement before hiring that applicant present birth certificate, naturalization or baptismal record. Any inquiry into citizenship which would tend to divulge applicant’s lineage, ancestry, national origin, descent, or birthplace.
Family
Fair:
Whether applicant can meet specified work schedules or has activities, commitments or responsibilities that may prevent him or her from meeting work attendance requirements.
Unfair:
Specific inquiries concerning spouse, spouse’s employment or salary, children, child care arrangements or dependents.
Disability
Fair:
Whether applicant has certain specified sensory, mental or physical disabilities which relate reasonably to fitness to perform the particular job. Whether applicant has any disabilities or health problems which may affect work performance or which the employer should take into account in determining job placement.
Unfair:
Over-general inquiries (e.g., "Do you have any disabilities?") which would tend to divulge disabilities or health conditions which do not relate reasonably to fitness to perform the job.
Height and Weight
Fair:
Inquiries as to ability to perform actual job requirements. Being of a certain height or weight will not be considered to be a job requirement unless the employer can show that no employee with the ineligible height or weight could do the work.
Unfair:
Any inquiry that is not based on actual job requirements.
Marital Status
Fair:
None.
Unfair:
Whether the applicant is married, divorced, separated, engaged, widowed, single, etc. or ( )Mr. ( )Mrs. ( )Miss ( )Ms. on application forms.
Military
Fair:
Inquiries concerning education, training, or work experience in the armed forces of the United States.
Unfair:
Type or condition of military discharge. Applicant’s experience in other than U.S. armed forces. Request for discharge papers.
Name
Fair:
Whether applicant has worked for this company or a competitor under a different name and, if so, what name. Name under which applicant is known to references if different from present name.
Unfair:
Inquiry into original name where it has been changed by court order or marriage. Inquiries about a name which would divulge marital status, lineage, ancestry, national origin or descent.
National Origin
Fair:
Inquiries into applicant’s ability to read, write and speak foreign languages, when such inquiries are based on job requirements.
Unfair:
Inquiries into applicant's lineage, ancestry, national origin, descent, birthplace, or mother tongue. National origin of
applicant’s parents or spouse.
Pregnancy (see also Disability)
Fair:
Inquiries as to a duration of stay on job or anticipated absences which are made to males and females alike.
Unfair:
All questions as to pregnancy, and medical history concerning pregnancy and related matters.
Relatives
Fair:
Name of applicant’s relatives already employed by this company or by any competitor.
Unfair:
Names and addresses of any relative other than those listed as proper. (While the law does not directly prohibit company policies governing the employment of relatives, any policy which has the effect of disadvantaging minorities, women, married couples or other protected classes, would be in violation of the law unless it is shown to serve a necessary business purpose.)
Residence
Fair:
Inquiries about address to the extent needed to facilitate contacting the applicant.
Unfair:
Names or relationship of persons with whom applicant resides. Whether applicant owns or rents own home.
Despite its length, the above list is merely an example of some (certainly not all) of the questions that cannot be asked and factors that cannot be considered in making decisions about hiring, promoting, pay rates, work hours and working conditions, discipline and termination.
The best way to avoid running afoul of the discrimination laws is to be sure that all owners, managers, and others involved in hiring, promotion, termination and other employee-related decisions are aware of the laws and the penalties for violating them. A strong, written anti-discrimination policy and periodic employee and management training can prevent claims and also increase employee diversity and improve employee and tenant relations.
Reprinted from an article by Karen Sutherland in the AASK Update, June, 1996.
Published with permission from the author and from Apartment Association of Seattle & King County.
AASK website: www.aask.com (external link)
If you have questions about Fair Housing laws and enforcement, contact the King County Office of Civil Rights at 206-296-7592 or 206-296-7596 TTY.
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Updated: Jan. 2, 2002 |
