Compliance with anti-discrimination laws in hiring protects recruiters, human resources managers and employers from costly lawsuits and legal fees associated with discriminatory hiring practices.
In 2022, the U.S. Equal Employment Opportunity Commission received 73,485 complaints about race, gender, age, religion, disability, color and national origin.
Most important laws against discrimination in hiring
1.ANTI-DISCRIMINATION LAWS IN RECRUITMENT: THE CIVIL RIGHTS ACT OF 1964 (CRA)
This is a landmark law that prohibits discrimination against applicants based on protected characteristics, such as:
- Gender: Gender, gender identity and sexual orientation
- Race: Skin color, skin tone, hair texture, ancestry, national origin, and other physical characteristics associated with race
- Religion: any religious belief or practice
When hiring, this law requires HR managers to:
- Avoid language that discourages applicants based on their gender, race and religion. This means that job descriptions, job postings and advertisements must focus on the skills, experience and qualifications relevant to the position.
- Don't ask discriminatory questions during interviews. Hiring managers may not ask questions about the applicant's race, religion or sexual orientation that are not relevant to the job.
- Using biased pre-assessments that impact protected groups and are not workplace-related
- Making hiring decisions based on stereotypes about certain groups with protected characteristics
- Adverse action against applicants who file a discrimination complaint
- Maintain records of their hiring practices to ensure compliance with the CRA in the event of audits.
2.ANTI-DISCRIMINATION LAWS IN RECRUITMENT: AGE DISCRIMINATION IN EMPLOYMENT (1975)
This federal law prohibits discrimination in hiring against individuals age 40 or older.
When hiring, this law requires HR managers to do the following
- In job advertisements and advertisements, avoid expressions that suggest a preference for younger applicants, such as: “young”, “recent university graduate”, “digital native” or “dynamic”. Avoid including age-related information such as dates of birth and graduation years on CVs and application forms
- Use blind recruiting software that hides personal information like age
- In interviews, don't ask age-related questions like "When is your birthday?" or “In what year did you complete your studies?”. Structure interviews to focus on the applicant's skills, experience and problem-solving skills, rather than their age. If possible, consider convening a panel of employees from different age groups to avoid age-related bias in the selection process.
- Design benefits such as health insurance, vacation, and retirement plans based on employee age. All employees should have equal access to compensation and benefits, regardless of their age group.
3.ANTI-DISCRIMINATION LAWS IN HIRING: AMERICANS WITH DISABILITIES ACT (ADA)
This federal law prohibits discrimination against applicants with disabilities.
The ADA protects individuals with physical or mental impairments that significantly limit their major life activities, such as seeing, speaking, hearing, or walking. The law also applies to people who have had an impairment in the past or who are perceived to have such an impairment.
This law obliges human resources managers to:
- In your job description and posting, specify the activities for the advertised position: tasks the applicant will perform, physical requirements (e.g., able to lift 50 pounds, walk at least 3 miles), work environment, work hours, and work 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 applicant's disability status before making a conditional offer of employment. Do not carry out medical examinations until you have made a job offer, which are job-related and the same for all applicants. Additionally, keep any medical information about an applicant with a disability confidential.
- Ensure that the interview process is accessible to all applicants so that applicants with disabilities can adequately demonstrate their skills and qualifications. Consider using alternative conversation formats or communication methods if necessary.
- Use blind recruiting tools that test the applicant's skills and abilities. Some software has features such as text-to-speech or screen readers that make the application process more accessible for applicants with disabilities so that everyone has a fair chance to apply.
4.ANTI-DISCRIMINATION LAWS IN RECRUITMENT: PREGNANCY DISCRIMINATION ACT
This federal law prohibits companies from discriminating against applicants based on pregnancy, childbirth and/or related medical conditions. Employers may not reject applicants because they are pregnant, have recently given birth or may become pregnant.
When hiring, HR managers are obliged under this law to:
- During interviews, it is illegal to ask questions about the applicant's pregnancy plans, child care arrangements or marital status. They could discourage applicants from applying for or accepting the job.
- You should focus on the applicant's skills and willingness to perform. So don't treat pregnancy as a disability when making hiring decisions.
- Pregnant applicants must receive the same salary and benefits as non-pregnant applicants with the same qualifications and experience. Offering different compensation packages based on pregnancy status is also illegal.
- Rejecting job offers because the applicant is pregnant or has a related illness
5.ANTI-DISCRIMINATION LAWS IN RECRUITMENT: GENETIC INFORMATION NON-DISCRIMINATION 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 form proteins from DNA.
- Chromosomes: Strands of DNA that contain genes.
- Genetic testing: Analyze DNA, RNA, or chromosomes to identify genetic variations.
- Family history: Information about the genetic makeup of a person's family members.
When hiring, this law obliges HR managers to:
- No genetic information may be requested in job advertisements or recruitment documents.
- Never ask for genetic information during interviews, medical examinations or pre-employment examinations. Medical inquiries should therefore be limited to assessing the applicant's ability to perform the essential job functions.
- Human resources managers may only pass on an applicant's genetic data with their written permission.
6.ANTI-DISCRIMINATION LAWS IN RECRUITMENT: EQUAL PAY ACT 1963
The Equal Pay Act of 1963 ensures that men and women who do similar work in the same place are paid equally. Therefore, if the work requires the same skills, effort, responsibilities and performance under similar conditions, both genders should be paid equally.
Although this law does not apply directly to the hiring process, HR professionals should be aware of its impact on wage discrimination in hiring and throughout the employment relationship:
- When writing job descriptions, avoid using words that favor one gender. Clearly state the skills and tasks required and pay men and women the same salary for the same work. To avoid unfair salary discussions, consider providing salary ranges based on experience and qualifications.
- Hiring managers shouldn't rely on how much someone previously earned to justify lower pay, especially if their previous employer paid less because of gender. In this way, unfair salary differences in different companies and industries can be avoided.
- If hiring managers can't list the salary in the job ad, they should mention it in the interview. An open conversation about salary helps ensure that wages are no longer kept secret and the work environment is fair and equal.
Bona Fide Professional Qualifications (BFOQs)
BFOQs are narrowly defined characteristics that are essential to the job and cannot be met by someone with another characteristic. They must therefore be directly related to the tasks and performance of the position and must not be based on stereotypes or assumptions.
BFOQs are legal exceptions to workplace anti-discrimination laws. However, they are not a license for free discrimination. They are a very narrow exception and require compelling justification.
Examples of possible BFOQs:
- Actors play specific roles in a film. The authenticity of the character, age or gender is essential for the artistic expression and authenticity of the film.
- The pilot reaches the mandatory retirement age due to safety regulations. Safety is critical to the aviation industry and age-related physical or cognitive limitations can pose a risk.
- Due to legal regulations, a minimum age is required for security personnel. The activity involves handling dangerous weapons or prohibited substances.
Employers must seek legal advice to ensure that their BFOQ claims are valid and consistent with applicable 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 work objectives without invoking protected characteristics. This could include changing work tasks, training employees or using alternative selection criteria. They should also always prioritize anti-discrimination principles and strive for fair and inclusive hiring practices.
Penalties and consequences for failing to comply with anti-discrimination laws when hiring
- Companies may have to pay fines if they lose a discrimination lawsuit. This covers the victim's financial losses and emotional distress. Sometimes the person who filed the lawsuit receives punitive damages so that the company learns from its unfair practices.
- The courts can order a company to stop unfair hiring and put things right. This may mean reinstating a person who has been treated unfairly, providing them with training, or enacting better staffing policies to prevent discrimination.
- Employers who are at fault must cover the legal fees of the affected applicant.
- Sometimes employers also face consequences such as the revocation of business licenses or contracts with government agencies.
- Discrimination can lead to criminal charges in certain situations, although this is less common. Criminal penalties may include fines and imprisonment.
- Exposure to discriminatory hiring practices can damage a company's reputation, resulting in loss of customers, employees and business opportunities, as well as difficulties in hiring employees.
- Violating anti-discrimination laws can exclude companies from government contracts or partnerships, depending on their industry and location.
- A discriminatory work environment can lower employee morale and productivity and, conversely, increase turnover.
COMPANIES THAT HAD TO FACE LEGAL CONSEQUENCES DUE TO DISCRIMINATIVE HIRING PRACTICES
Amazon
Former manager Lisa McCarrick was asked by her boss to review applicants' social media profiles to determine their gender and race. She was aware that Amazon was being criticized for its lack of diversity in the workplace and believed what was being asked of her was illegal.
McCarrick sued Amazon, alleging she was illegally terminated when she complained about this job. The lawsuit alleges that while she consistently received positive performance reviews during her employment at Amazon, she was told the reason for her termination was because she "failed to meet expectations."
Applicants Howard Winns Jr. and Jazsmin Smith filed a lawsuit with the Equal Employment Opportunity Commission accusing Facebook of racial discrimination in hiring black applicants. They claimed they were rejected for jobs despite being "well qualified" and having recommendations from a current Facebook employee.
Similarly, former recruiter Anastasia Boone Talton filed a $100 million lawsuit against Facebook. She claims that the social media company only paid "lip service" to its diversity goals and flew applicants to the company's headquarters for interviews just to meet a quota without actually hiring them.
Tips for complying with anti-discrimination laws when hiring
- Create job descriptions that don't favor one group. So describe the skills and experience required for the job. Do not use words that might exclude certain groups of people, such as: E.g. “digital natives”, “dynamic” or “university graduates”.
For more information, see a list of offensive (exclusionary) words in job descriptions.
- Use blind recruiting tools that hide applicants' identifiable information, such as: Examples include anonymous resume screening software, blind interview platforms, competency-based assessment platforms, AI-powered screening and matching tools, and job description management software.
- Implement standardized interview questions. Develop a series of unbiased interview questions for all applicants that focus on job-related experience and potential. Even if you want to learn some personal information from applicants, you should ask unbiased questions to make your application process more fair and inclusive.
- Create diverse discussion groups. Include employees with diverse characteristics such as age, race, gender identity, sexual orientation, skills and experience. Define your board’s diversity skills, roles, and contributions. For example, Panel A may assess the applicant's skills, while Panel B assesses their personality.
- Choose fair criteria for selecting people. So make sure your tests only measure the skills and qualifications required for the job. Also, use different types of tests, such as: Games that test behavior, thinking, knowledge of the job and skills.
- Set salary ranges based on job requirements and experience, not previous salaries, to avoid gender or other pay disparities.
- Constantly review and improve how you hire employees. So make sure your hiring practices comply with anti-discrimination rules. Also, ask candidates how they feel about the hiring process and what can be improved by conducting surveys.
- If you need more clarity about specific hiring practices, consult an attorney or human resources professional to ensure compliance with EEOC regulations.
Understanding and adhering to anti-discrimination laws in hiring is paramount. Stay compliant and streamline HR processes with IceHrm.