One form of discrimination with growing prevalence in the today’s employment industry is definitely hiring discrimination, but employees who experience it may be at a loss for successful solutions. How do you get sufficient recourse against a company that is not technically in a formal employer-employee relationship with you yet?
The good news is that there are a number of action steps which job candidates can take when hiring discrimination is suspected, whether or not they are hired for the job. First, however, it helps to know what constitutes hiring discrimination in today’s workplace.
What Constitutes Hiring Discrimination in Today’s Workplace?
Hiring discrimination occurs when an employer treats job candidates differently based on race, color, national origin, religion, disability, sex or age during application or hiring process. These categories represent specific designations in Title VII of the Civil Rights Act which protects workers from employment discrimination and covers companies across the nation with 15 or more employees.
In order to prove a hiring discrimination claim, certain elements must be addressed to establish a primae facie case. A primae facie case raises the presumption that a Title VII violation has occurred. These elements are as follows:
- The job candidate belongs to a protected group noted in Title VII.
- The candidate applied for and was qualified for the position.
- The candidate was not hired.
- After the candidate was not hired, the employer continued searching for candidates with the same qualifications.
Once established, these elements tend to show that the employee likely experienced discrimination. Unless the employer can show that there were other legitimate businesses-related reasons beyond discrimination for failure to hire the job candidate, the employee could receive a suitable remedy for the company’s violation of the law.
What Does Today’s Hiring Discrimination Look Like?
Hiring discrimination can take on a number of forms in the workplace. A recent study has shown that racial hiring discrimination is still persistent in the workplace. The study revealed that many employers still show bias according to the perceived race of job candidates. Specifically, employers preferred resumes with white sounding names and routinely rejected resumes with traditionally African American sounding names.
Hiring discrimination can also be based on traditional religious clothing. For example, in recent cases involving hiring discrimination against Muslim Americans, employers have rejected job candidates who chose to wear religious head dresses or beards due to inconsistency with company image. Courts have ruled that such hiring practices are violations of Title VII.
What Rights Do I Have Prior to Employment?
Job candidates do have rights even before employment begins. In terms of job applications and interviews, employers are prohibited from inquiring about aspects related to the particular statuses noted in Title VII. For instance, an employer may not advertise employment specifying a certain race, or national origin or even advertise that unemployed candidates need not apply.
Additionally, an employer may not require a job candidate to reveal aspects related to the classes noted in Title VII during interviews or other hiring procedures. This includes asking about whether the candidate intends to have children or is pregnant, whether the candidate uses drugs or alcohol, whether the candidate is an illegal immigrant and inquiring about the candidates race, national origin, sexual preference or marital status.
However, it is important to note that these topics and other related categories noted in Title VII can be discussed under limited circumstances. Mainly, if a job candidate brings up a topic, the item could be discussed without risk of liability for the employer. Also, an exception of most discrimination laws is the bona fide occupational rule which states that if a characteristic that would otherwise be discriminatory is a bona fide necessity for the job, the employer has a right to discriminate.
What Can I Do When Hiring Discrimination is Suspected?
Generally the hiring process involves a number of procedures that must be carried out in order to satisfy federal and state requirements for establishing an employer-employee relationship, but these procedures should not violate the rights of job candidates. If you suspect you weren’t hired because of discrimination, here a few action a steps to follow:
1. Document changes in behavior or attitude.
Often, a good indicator that hiring discrimination has occurred is an abrupt change in an employer’s behavior from the application process to a phone interview or an in-person interview. For example, after a series of comfortable and non-problematic phone interviews, an employer may abruptly change behavior at the outset of an in-person interview. Such behavioral shifts could indicate bias and discrimination.
Also, an employe may treat job candidates with equal qualifications differently or have a history of consistently refusing to hire qualified candidates, all of which share a particular race, color, national origin or other protected characteristic. When an employer exhibits such patterns, it could be an indication of hiring discrimination. It is important to document such shifts in attitude or behavior and to not such hiring practice patterns.
2. Be on alert for non-job related inquires that discriminate.
Whether on a job application or during a job interview, non job-related inquiries that are associated with the protected categories of Title VII are off limits for employers. It is also important to be aware of additional protected classes covered under state law. For instance, in California, an employee’s sexual orientation and gender identity are also protected and should not be at issue during the employee application and hiring process.
On the other hand, certain questions and inquiries are perfectly legal, such as inquiring about past job performance and physical capability if the job requires physical tasks. Also video interviews and video resumes are legal as are pre-employment exams and questions about disabilities submitted after an employment offer has been made. However, these must be submitted to all employees and not single out certain job candidates.
3. Contact a qualified attorney with experience handling hiring discrimination cases.
Last but not least, a qualified attorney with experience handling hiring discrimination cases is essential. Acquiring evidence and knowledge of the law is not easy to obtain for the average person dealing with a hiring discrimination case. Employment discrimination lawyers familiar with a number of hiring discrimination scenarios can assist you with deciding what rights and remedies are available to you when you suspect you weren’t hired because of hiring discrimination even if you have not yet established an employer-employee relationship.