Your Rights During the Hiring Process

Legal Safeguards to Protect You When You Apply for a Job

The average American spends about a quarter of their adult life working. You want work that allows you to provide for yourself and your family, and you hope that it will be safe and meaningful. Unfortunately, many find that the process of finding a job is stacked against them. There are laws, though, that protect your rights when you’re applying for a job, laws designed to give you an equal opportunity to realize the American dream.

The Basic Protections Available to Job Applicants

Several federal statutes protect workers throughout the hiring process by banning hiring decisions that violate anti-discrimination laws. These laws must be applied uniformly throughout the United States. Any hiring decision 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 provides the injured party with the legal basis for a lawsuit. Protected characteristics include race, color, religion, sex, gender identity, sexual orientation, pregnancy, national origin, age (40 or older), disability, and genetic information.

In limited situations, an employer may discriminate based on one of these factors, if the employer can show a “bona fide occupational requirement.” For example, if an employer seeks to hire someone to model female clothing, the job advertisement may limit applicants by gender without violating anti-discrimination laws.

Violations of Applicants’ Rights in Job Postings or Advertisements

Any written or oral notice of a job opening must avoid language that suggests or expressly states that applicants in protected classes will not be considered or should not apply, unless those characteristics are considered a bona fide occupational requirement. 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.

Questions Asked During the Hiring Process

As a general rule, a potential employer should avoid asking a candidate any question that would allow the applicant to be categorized in a way prohibited by law. This includes questions about:

• Age
• Marital status, family size or status, or intentions with respect to size of family
• Religion or religious practices
• Sexual orientation
• Whether or not the applicant has a disability, unless it is to determine the extent to which reasonable accommodations can be made for the applicant
• The applicant’s use of alcohol or recreational drugs when not at work
• Whether or not the applicant is a U.S. citizen

An applicant is free to initiate conversations about any such subjects. The employer may then respond as necessary to answer the applicant’s questions.

Guidelines for Pre-Employment Inquiries

To minimize the risk of violating an applicant’s rights during the hiring process, employers should typically employ these practices:

• Don’t ask prohibited questions—Avoid any question that suggests categorization of the applicant in a protected class.
• Ask only questions related to the job and job experience—Stay away from questions about the applicant’s personal life.
• Use a prepared list of questions and ask all applicants the same questions
• Conduct interviews in teams of two or more—That will minimize the risk of a “you said, I said” outcome.
• Take thorough notes during any interview—You may want to record or videotape the interview, but should obtain the applicant’s permission before doing so.

Implementation of a Pre-Employment Screening Test

The use of certain types of tests to pre-screen potential employees has risen dramatically over the past couple decades. In most instances, those tests don’t pose any legal problems. They can include a broad range of factors and types of tests, including:

• Test of cognitive ability—measuring whether the applicant will have the intellectual skills to do the job
• Test of physical ability—where a significant requirement of the job includes physical strength or stamina
• Sample job test
• Medical exam—testing the applicant’s physical or mental well-being
• Criminal background check—as long as the applicant consents and receives a copy of the report, if requested, along with notification on how to contact the company that compiled the report
• Credit check—as long as the applicant consents and receives a copy of the report, if requested
• Personality test—to determine if the applicant has character traits commonly associated with success in the position
• Language proficiency test

As a general rule, a pre-screening test is permissible, provided it is necessary; related to the job; and does not seek to exclude applicants because of gender, race, age, disability, or other protected class. There are, however, some limitations under federal law:

• In the event a background check reveals a bankruptcy filing, The Federal Bankruptcy Act makes it illegal for the employer to base its hiring decision on the applicant’s bankruptcy or debt prior to filing bankruptcy.
• Title VII 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.

Illegal Acts of Retaliation in the Hiring Process

An employer may not make decisions during the hiring process that are in retaliation for the applicant’s “protected activity.” Protected activity includes a wide range of behaviors, including:

• The filing of a valid workers’ compensation claim
• The filing of any legal action against an employer or the participation as a party or witness in any such action
• The applicant’s prior requests for accommodations for a disability or religious practice
• The applicant’s reporting of illegal, unethical, or improper conduct by an employer

Protecting Your Rights After Discrimination in the Hiring Process

The Equal Employment Opportunity Commission handles claims based on allegations of discrimination in employment. If you’re denied employment because of discrimination, you must first notify the EEOC. Unless you successfully mediate your dispute, the EEOC will investigate your claim, and may either impose sanctions or issue you a “right to sue” letter, allowing you to proceed with a lawsuit in court.

Summary

Under state and federal law, job applicants are protected from certain acts by employers during the hiring process. Employers may not post job openings, ask interview questions, or implement pre-employment tests or other screening efforts that categorize potential employees according to protected classes. If you have been the victim of wrongful discrimination in the hiring process, you must initiate your claim with the Equal Employment Opportunity Commission.