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Prohibited Employment Practices Part II – Pre-Employment


The protections of the various federal anti-discrimination laws, which make certain policies and practices illegal when they result in employees or applicants of a particular race, color, religion, sex, age, disability, or national origin being treated less favorably than others. This second part of this blog series will discuss prohibited policies and practices that unlawfully discriminate against job applicants during the pre-employment stage.

Discriminatory Job Advertisements

It is unlawful for employers to publish job advertisements that indicate any preference for certain applicants of a certain race, gender, religion, etc. or that discourage those same individuals from applying for the position because of their membership in a protected class of people. A common example of an unlawful advertisement is one that seeks “recent college graduates,” which would discourage older individuals from applying.

Discrimination in Job Recruitment

Similar to job advertisements, job recruitment efforts cannot be discriminatory in nature. If employers take steps to recruit employees that only belong to certain races, for example, those efforts are likely to be unlawful. One example that some employers overlook is word-of-mouth recruiting methods when the current workforce is predominately white because it is more likely that word of a job opening would only spread through the white population.

Discrimination in the Application and Hiring Process

It is obvious that refusing to hire or provide job applications to certain people because of their race or ethnicity, for example, is unlawful. In general, hiring decisions cannot be made based on race, color, religion, sex, national origin, age, disability, or genetic information, including stereotypes and assumptions about people on those bases.

When employers require applicants to take an exam, that exam must be necessary and job-related and cannot exclude people who fall into any of those protected categories. Also, job applicants who may need an accommodation based on a disabling condition must be allowed that accommodation unless it would cause significant difficulty or expense for the employer.

Are any Pre-Employment Inquiries Allowed?

The pre-employment process utilized by many employees often involves background checks and other inquiries about applicants. Basically, applicant information requested during the pre-employment process needs to be limited to information essential to determining qualifications. Because information regarding race, sex, national origin, age, and religion is legally irrelevant in determining qualification for a position, that information cannot be requested. Specifically, an employer is prohibited from engaging in pre-offer inquiries regarding disability.

Employer inquiries that disproportionately weed out certain types of people may be used as evidence of that employer's intent to discriminate. However, if the employer can show that the specific questions are justified by a legitimate business purpose, they may have a defense. It can get tricky when employers ask questions in interviews about membership or participation in certain organizations or clubs that may indicate the applicant's race, sex, national origin, disability status, age, religion, color or ancestry.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 319-9724. We are here to serve you!

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