Hiring

Not Hired Because of Illegal Discrimination? An Employment Lawyer Can Help.

Discrimination Claims In Hiring

Employers cannot refuse to hire or employ the person or to refuse to select the person for a training program because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex (which includes pregnancy, childbirth, related medical conditions, gender and gender identity), age, or sexual orientation of any person.

Even when there is no demonstrable discriminatory intent, an employer may be liable for discrimination if the employer’s recruiting and hiring practices result in statistical underrepresentation of protected classes in the employer’s workplace. This goes for employment agencies, labor unions, and apprenticeship training programs.

Illegal Job Qualifications

Title VII of the Civil Rights Act of 1964 prohibits hiring standards that set legally unjustifiable hurdles for minority or female applicants. But, those types of standards may be justified if they meet the “business necessity test” that is to say they bear a substantial relationship to the job to be performed. In California the business-necessity defense applies only if there is “an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business and that the challenged practice effectively fulfills the business purpose it is supposed to serve” and if there is no “alternative practice which would accomplish the business purpose equally well with a lesser discriminatory impact.”

Generally, it is illegal to use age as a hiring criterion under the Age Discrimination in Employment Act of 1967.

Under the Immigration Reform and Control Act of 1986, an employer may not discriminate against a person because of national origin, lack of United States citizenship, status as an alien lawfully admitted to the United States for permanent or temporary residence, or status as a refugee in recruiting and hiring.

Employers may not discriminate against applicants on the basis of actual or perceived sexual orientation.

Under 11 USC §525(b), employers may not discriminate against an individual because he or she has (1) sought bankruptcy protection, (2) been insolvent before seeking bankruptcy protection, or (3) not paid a debt that is discharged in bankruptcy. Moreover, any pre-employment consumer credit investigation should seek only job-related information.

Under 42 USC §12114(b), employers may not discriminate against applicants who are participating in a supervised rehabilitation program and no longer engage in such use, successfully rehabilitated from past drug use and no longer engage in such use, or erroneously regarded as someone who is engaged in illegal drug use.

When it comes to languages, the EEOC presumes that a blanket “English-only” rule violates Title VII, while a less restrictive rule may be justified by business necessity. 29 CFR §1606.7(a)-(b).

The Americans with Disabilities Act of 1990 prohibits using qualification standards, employment tests, or other selection criteria that tend to screen out individuals with disabilities unless the standard, test, or criterion is related to the position in question and is consistent with business necessity even if the standard is job related, the employer must consider whether the individual could meet the requirements with reasonable accommodation.

Employers may not discriminate against applicants based on “medical conditions” meaning any health impairment related to or associated with a diagnosis of cancer, or a record or history of cancer, or genetic characteristics.

Under the Uniformed Services Employment and Reemployment Rights Act of 1994 a member of the uniformed services may not be discriminated against in hiring, employment, re-employment, retention in employment, promotion, or any benefit of employment on the basis of past or current membership in the uniformed services, performance of service, application for service, or obligation for military service.

What Employers Can and Can’t Ask On Applications and In Interviews

Government Code §12940(d), prohibits any non-job-related inquiry that “expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age or sexual orientation.” Under the Fair Employment and Housing Act (“FEHA”), “sex” includes pregnancy, childbirth or pregnancy-related medical conditions, gender, and gender identity. Employers may not ask questions about childbearing, pregnancy, birth control, or family responsibilities unless they are “related to specific and relevant working conditions of the job in question.”

Employers may inquire into the age of an applicant, or specify age limitations, when the law compels or provides for that action.

Employers can ask about marital status can only be made if it is for one of the following reasons:

Bona fide occupational qualification (BFOQ);
Business necessity;
Job relatedness;
Conformance to applicable security regulations; or
Conformance to a nondiscrimination plan or affirmative action plan.

An employer must not discriminate against female applicants because they are, or could become, pregnant.

Employers with 5 or more employees may not require any medical or psychological examination of a job applicant, or make any inquiry of an applicant regarding whether the applicant has a disability or medical condition or its nature or severity. These employers cannot ask:

Do you have a disability that would interfere with your ability to perform the job?
How many days were you sick last year?
Have you ever filed for workers’ compensation?
Have you ever been injured on the job?
How much alcohol do you drink each week?
Have you ever been treated for alcohol problems?
What prescription drugs are you currently taking?

But, and employer can ask questions about an applicant’s ability to perform job-related functions and may ask the applicant to describe or demonstrate how, with or without reasonable accommodation, he or she will be able to perform job-related functions like:

Can you perform the functions of this job (essential and/or marginal), with or without reasonable accommodation?
Will you please describe/demonstrate how you would perform those functions? (Description may include essential and/or marginal functions.)
Can you meet the attendance requirements of this job?

Employers cannot ask anything that expresses, “directly or indirectly, any limitation, specification, or discrimination as to … religious creed” unless the inquiry is job-related. But, this is a pretty tough standard to meet. For example, he court held that a requirement in portions of Saudi Arabia that an employee pilot be a Muslim was a legitimate one, because Saudi Arabian law prohibited, under penalty of death, entry of non-Muslims into the area.

When it comes to criminal records, an employer may not ask applicants about:

Arrests or detentions that did not result in convictions;
Convictions for certain misdemeanor marijuana-related offenses if the convictions are more than 2 years old;
The applicant’s referral to, or participation in, a pre- or post-trial diversion program;
Any conviction for which the record has been judicially ordered sealed, expunged, or statutorily eradicated (e.g., juvenile offense records sealed; any misdemeanor conviction for which probation has been successfully completed or otherwise discharged and the case has been judicially dismissed; or
Any arrest for which a pretrial diversion program has been successfully completed).

Employers are obligated to provide workplaces that are free from harassment so they can ask whether the applicant was ever disciplined or terminated because of sexual harassment in the workplace.

What Employers Can and Can’t Do During Background Checks

Communications between former and prospective employers about job performance or employment qualifications are legal and they are actually privileged.

Employers can test you for skills, but they may not require any psychological examination of a job applicant, or make any psychological inquiry of an applicant or inquire about the nature or severity of an applicant’s mental disability. Which brings up medical and physical examinations given after the job offer; Employers may conduct such examinations if they are given to all employees entering into a particular job classification.

No private employer may require an employee or applicant to take a polygraph, lie detector, or similar test as a condition of employment or continued employment.

Employers can ask for applicants fingerprints and photographs.

Employer may require job applicants to undergo a drug test, as long as that test is part of a broader pre-employment medical examination that is required of every applicant.

If you have been passed over for a job because of your race, gender, disability, age, or religion, an employment lawyer can help.

San Diego Employment Lawyer, John McCarthy, helps people who have not been hired because of their race, gender, disability, age, or religion get justice. Call today for a free consultation. (800) 690-1701

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