Can an Employee Discriminate in the Hiring Process?
1) Can an employer discriminate in the hiring process? If so, how and when?
Yes. As an employer goes through the hiring process, there are many laws which prohibit discrimination. Among these, though, are conditional situations and laws which allow for various types of discrimination by the employer (or other covered entity) during the hiring process. Some of the permissible discrimination includes the following:
Age: the Age Discrimination in Employment Act (ADEA) protects those ages 40 and over, it does not protect those under 40. Employers may favor an older worker over a younger worker, even if both are 40 or over. Issues may arise, though, when both the individual making the hire and the applicant are over age 40. Examples of age-based bona fide occupational qualification (BFOQ) are mandatory retirement ages for air traffic controllers [56, exceptions to 61] and airline pilots [65].
Disability: employers are required to provide reasonable accommodations for disabled applicants, unless the needed accommodations would be too difficult or expensive (“undue hardship”). An employer may also, after an offer is extended, condition the offer on medical questions or a medical exam as long as all new employees are treated the same.
Religious/Sex/National Origin: where religion, sex, or national origin is a bona fide occupational qualification (BFOQ), they may be used in the hiring process if they’re reasonably necessary to the operation of the institution. Educational institutions of a particular religious affiliation may require the same applicants of the institution also be affiliated with the particular religion. Regarding national origin, an employer can require an applicant to speak fluent English if such a qualification is necessary to perform the job. Additionally, a foreign accent may be considered in an employment decision if the employer has reason to believe it would seriously interfere with job performance. Further, if required to do so by law,
Yes. As an employer goes through the hiring process, there are many laws which prohibit discrimination. Among these, though, are conditional situations and laws which allow for various types of discrimination by the employer (or other covered entity) during the hiring process. Some of the permissible discrimination includes the following:
Age: the Age Discrimination in Employment Act (ADEA) protects those ages 40 and over, it does not protect those under 40. Employers may favor an older worker over a younger worker, even if both are 40 or over. Issues may arise, though, when both the individual making the hire and the applicant are over age 40. Examples of age-based bona fide occupational qualification (BFOQ) are mandatory retirement ages for air traffic controllers [56, exceptions to 61] and airline pilots [65].
Disability: employers are required to provide reasonable accommodations for disabled applicants, unless the needed accommodations would be too difficult or expensive (“undue hardship”). An employer may also, after an offer is extended, condition the offer on medical questions or a medical exam as long as all new employees are treated the same.
Religious/Sex/National Origin: where religion, sex, or national origin is a bona fide occupational qualification (BFOQ), they may be used in the hiring process if they’re reasonably necessary to the operation of the institution. Educational institutions of a particular religious affiliation may require the same applicants of the institution also be affiliated with the particular religion. Regarding national origin, an employer can require an applicant to speak fluent English if such a qualification is necessary to perform the job. Additionally, a foreign accent may be considered in an employment decision if the employer has reason to believe it would seriously interfere with job performance. Further, if required to do so by law,
Cited: How Can the Company Protect Itself from Liability for Supervisors Who Sexually Harass Employees. (2008, March 26). Retrieved July 2013, from FindLaw for Legal Professionals: http://corporate.findlaw.com/human-resources/how-can-the-company-protect-itself-from-liability-for-supervisors.html Bona Fide Occupational Qualification. (n.d.). Retrieved July 2013, from Wikipedia, The Free Encyclopedia: http://en.wikipedia.org/wiki/Bona_fide_occupational_qualifications Cooley Godward LLP. (2005, April). Proactive Steps: Protecting Your Company Against Sexual Harassment Claims. Retrieved July 2013, from http://www.cooley.com/files/ALERT_Sex_Harass_Audit.pdf EEOC. (n.d.). Discriminations by Type. Retrieved July 2013, from U.S. Equal Employment Opportunity Commission: http://www.eeoc.gov/laws/types/index.cfm EEOC. (n.d.). Facts About Sexual Harassment. Retrieved July 2013, from Equal Employment Opportunity Commission: http://www.eeoc.gov/eeoc/publications/fs-sex.cfm EEOC. (n.d.). Title VII of the Civil Rights Act of 1964. Retrieved July 2013, from U.S. Equal Employment Opportunity Commission: http://www.eeoc.gov/laws/statutes/titlevii.cfm Mandatory Retirement. (n.d.). Retrieved July 2013, from Wikipedia, The Free Encyclopedia: http://en.wikipedia.org/wiki/Mandatory_retirement Roberts, B. S., & Mann, R. A. (n.d.). Sexual Harassment in the Workplace: A Primer. Retrieved July 2013, from http://www3.uakron.edu/lawrev/robert1.html Zoller, B. P. (2013, June 7). Nevada Abolishes Law That Permitted Discrimination Against Communist Employees. Retrieved July 2013, from XpertHR: http://www.xperthr.com/news/nevada-abolishes-law-that-permitted-discrimination-against-communist-employees/10021/