Complying with anti-discrimination hiring laws protects recruiters, HR, and employers from costly lawsuits and legal fees associated with discriminatory recruitment practices.
In 2022, the US Equal Employment Opportunity Commission received 73,485 complaints about race, sex, age, religion, disability, color, and national origin.
Key Anti-Discrimination Hiring Laws
1. Anti-Discrimination Hiring Laws: The Civil Rights Act of 1964 (CRA)
This is a landmark law that prohibits discrimination against applicants based on protected characteristics such as:
- Sex: Gender, gender identity and sexual orientation
- Race: color, skin tone, hair texture, ancestry, national origin, and other physical characteristics associated with race
- Religion: any religious belief or practice
During hiring, this law requires recruiters to:
- Avoid language that discourages candidates based on sex, race, and religion. This means the job descriptions, postings, and advertising must focus on skills, experience, and qualifications relevant to the job.
- Refrain from asking discriminatory questions during job interviews. Recruiters must refrain from asking questions about the candidate’s race, religion, or sexual orientation irrelevant to the role.
- Using biased pre-assessments that impact protected groups that are not job-related
- Making hiring decisions based on stereotypes about certain groups with protected characteristics
- Taking negative actions against candidates who file a discrimination complaint
- Keep records of their recruitment practices to ensure compliance with the CRA in cases of audits.
2. Anti-Discrimination Hiring Laws: Age Discrimination in Employment Act of 1975
This federal law prohibits employment discrimination against persons aged 40 or older.
During hiring, this law requires recruiters to:
- Avoid using language that connotes preference for younger candidates, like “young,” “recent graduate,” “digital native,” or “energetic.” in job posts and ads. Don’t include age-related information like birthdates and years of graduation from resumes and application forms
- Use blind recruitment software where personal information like age is masked out
- Ask age-related questions during job interviews, like “When is your birthday?” or “What year did you graduate or finish college?”. Structure interviews highlighting the candidate’s competencies, experiences, and problem-solving abilities rather than their age. If possible, have an interview panel, including employees from different age groups, to avoid age-related biases during selection.
- Design employee benefits like health insurance, vacation time, and retirement plans based on someone’s age. All employees should have equal access to compensation and benefits regardless of their age group.
3. Anti-Discrimination Hiring Laws: Americans with Disabilities Act (ADA)
This federal law prohibits discrimination against candidates with disabilities.
ADA protects individuals with physical or mental impairments significantly limiting their major life activities, such as seeing, speaking, hearing, or walking. It also covers people with a history of impairment or who are perceived as having such an impairment.
During hiring, this law requires recruiters to:
- In your job description and posting, specify the activities for the advertised position: tasks the candidate will perform, physical requirements (e.g., can lift 50 lbs, can walk at least 5 km), the work environment, work schedule, and location. You could also include a DEI statement at the end of your job ad to encourage people with disabilities to apply.
- Avoid asking about the candidate’s disability status before making a conditional job offer. Only after extending a job offer, conduct medical examinations that are job-related and consistent for all candidates. Also, keep confidential all medical information about an applicant with a disability.
- Make the job interview process accessible to all candidates so applicants with disabilities can adequately demonstrate their skills and qualifications. Consider using alternative interview formats or communication methods if necessary.
- Use blind recruitment tools that test the candidate’s skills and abilities. Some software has features like text-to-speech or screen readers, making the application process more accessible for candidates with disabilities so everyone has a fair chance to compete.
4. Anti-Discrimination Hiring Laws: Pregnancy Discrimination Act
This federal law prohibits organizations from discriminating against candidates based on pregnancy, childbirth, and/or related medical conditions. Employers cannot turn down applicants because they are pregnant, have recently given birth, or may become pregnant.
During hiring, this law requires recruiters to:
- During job interviews, asking questions about the candidate’s pregnancy plans, childcare arrangements, or family status is illegal. It could discourage candidates from applying for or accepting the role.
- They should focus on the candidate’s skills and ability to perform well. So, don’t treat pregnancy as a disability when making hiring decisions.
- Pregnant candidates must get equal pay and benefits to those non-pregnant candidates with the same qualifications and experience. Also, offering different compensation packages based on pregnancy status is illegal.
- Canceling job offers because the applicant is pregnant or has a related medical condition
5. Anti-Discrimination Hiring Laws: Genetic Information Nondiscrimination Act of 2008
The Genetic Information Nondiscrimination Act of 2008 (GINA) protects people from discrimination based on their genetic information in various areas, including employment.
GINA defines genetic information as:
- DNA: The building blocks of genes.
- RNA: A molecule that helps create proteins from DNA.
- Chromosomes: Strands of DNA that contain genes.
- Genetic tests: analyze DNA, RNA, or chromosomes to identify genetic variations.
- Family history: Information about a person’s family members’ genetic conditions.
During hiring, this law requires recruiters to:
- Job postings and recruitment materials should not request genetic information
- Never ask for genetic information during job interviews, medical screenings, or pre-employment evaluations. So, medical inquiries should be limited to assessing the candidate’s ability to perform essential job functions.
- Recruiters can only disclose an applicant’s genetic information to someone with their written authorization.
6. Anti-Discrimination Hiring Laws: Equal Pay Act of 1963
The Equal Pay Act of 1963 makes sure that guys and gals doing similar jobs in the same place get the same pay. Therefore, if the work needs the same skill, effort, responsibility, and performance in similar conditions, both genders should be paid equally.
Though this law doesn’t directly apply to the hiring process, recruiters should be aware of its impact on pay discrimination during hiring and throughout employment:
- When writing job descriptions, don’t use words that favor one gender. Clearly state the skills and duties needed and give the same pay to guys and gals doing the same job. So, to avoid unfair pay discussions, include salary ranges based on experience and qualifications.
- Recruiters shouldn’t use how much someone earned before to excuse paying them less, especially if their old employer paid less because of gender. This helps prevent unfair pay differences in different companies and industries.
- If recruiters can’t put the salary on the job ad, they should tell it during the interview. Talking openly about pay helps stop keeping wages secret and makes the work environment fair and equal.
Bona Fide Occupational Qualifications (BFOQs)
BFOQs are narrowly defined characteristics essential for the job and cannot be effectively fulfilled by someone with another characteristic. So, they must be directly related to the job’s duties and performance, not based on stereotypes or assumptions.
BFOQs are legal exceptions to anti-discrimination laws in the workplace. However, they are not a license to discriminate freely. They are a very narrow exception and require a compelling justification.
Examples of potential BFOQs:
- Actors play specific roles in a movie. Authenticity to the character, age, or gender is essential for the artistic expression and authenticity of the film.
- The pilot is reaching mandatory retirement age due to safety regulations. Safety is critical to the aviation industry, and age-related physical or cognitive decline can pose risks.
- Security personnel require a minimum age as part of legal requirements. The job involves handling dangerous weapons or restricted substances.
Employers must seek legal advice to ensure their BFOQ claims are valid and compliant with current laws and if there are any questions or concerns about BFOQs or anti-discrimination practices.
In addition, they should consider other ways to achieve legitimate job objectives without relying on protected characteristics. This could involve modifying job duties, training employees, or using alternative selection criteria. Also, always prioritize anti-discrimination principles and strive for fair and inclusive hiring practices.
Penalties and Consequences of Neglecting Anti-Discrimination Hiring Laws
- Companies might have to pay fines if they lose a discrimination lawsuit. So, this covers the victim’s financial losses and emotional distress. Sometimes, the person who filed the complaint gets punitive damages to make the company learn from its unfair practices.
- Courts can tell a company to stop unfair hiring and fix things. So, this might mean hiring a person who was treated unfairly, giving training, or making better HR rules to stop discrimination.
- Guilty employers are required to pay the legal fees of the impacted candidate.
- Sometimes, employers may face consequences like revocation of business licenses or contracts with government entities.
- Discrimination may lead to criminal charges in certain situations, though this is less common. Criminal penalties may include fines and imprisonment.
- Publicity of discriminatory hiring practices can damage a company’s reputation, leading to potential loss of customers, employees, and business opportunities and difficulty hiring people.
- Violating anti-discrimination laws can disqualify companies from government contracts or partnerships, depending on industry and location.
- A discriminatory work environment can lower employee morale and productivity while inversely increasing turnover.
Companies that Faced Legal Consequences for Discriminatory Hiring Practices
Amazon
Former manager Lisa McCarrick was asked by her supervisor to check candidates’ social media profiles to verify their gender and race “to ascertain race/ethnicity and gender.” She was aware that Amazon was criticized for the company’s lack of workplace diversity and thought what was asked of her was illegal.
McCarrick sued Amazon because she was illegally terminated when she complained about the task. The lawsuit claims that though she always received positive performance reviews during her employment with Amazon, she was told that the reason for her termination was because ‘she was not meeting expectations.’
Candidates Howard Winns Jr. and Jazsmin Smith filed a complaint with the Equal Employment Opportunity Commission, accusing Facebook of racial discrimination against Black applicants in hiring. They alleged that they were rejected for positions despite being “well-qualified” and having recommendations from a current Facebook employee.
Similarly, former recruiter Anastasia Boone Talton filed a $100m lawsuit against Facebook. She says that the social media company only ‘paid lip service’ to its diversity goals and would fly applicants out to be interviewed at their company headquarters just to meet a quota without actually hiring them.
Tips for Upholding Anti-Discrimination Hiring Laws
- Create job descriptions that don’t favor one group. So, describe the skills and experience needed for the job. Don’t use words that might leave out certain people, like “digital natives,” “energetic,” or “recent graduates.”
For more information, please read A List of Offensive (Exclusionary) Words Used in Job Descriptions.
- Use blind recruitment tools that block out candidates’ identifiable information, like anonymous resume screening software, blind interview platforms, skills-based assessment platforms, AI-powered screening and matching tools, and job description management software.
- Implement standardized interview questions. Develop a set of unbiased interview questions for all candidates, focusing on work-related experience and potential. Also, if you want to know some personal information from the candidate, consider asking unbiased questions to make your job interview process more fair and inclusive.
- Create diverse interview panels. Include employees with different characteristics like age, race, gender identity, sexual orientation, skills, and experience. Define the skills, roles, and diversity contributions of your panel. For example, Panel A will assess the applicant’s skills, and Panel B evaluate their personality.
- Pick fair criteria for choosing people. So, make sure your tests only measure skills and qualifications needed for the job. Also, use different types of tests, like games that show behavior, thinking, job knowledge, and skills.
- Design salary ranges based on job requirements and experience, not past salaries, to avoid perpetuating gender or other pay disparities.
- Keep checking and improving how you hire people. So, make sure your ways of hiring follow the rules against discrimination. Also, ask candidates how they feel about the hiring process and what can be made better by doing surveys.
- If you need more clarification on specific recruitment procedures, consult an attorney or HR professional to ensure compliance with EEOC.
Why I Wrote This:
At Ongig, we help recruiters comply with anti-discrimination hiring laws to avoid lawsuits and attract more diverse candidates. Contact us for a demo.
