Discrimination and the Hiring Process

Discrimination and the Hiring Process FAQ

Q : Is it ever appropriate to indicate a preference for applicants of a specific sex or age?
A: Rarely. Anti-discrimination laws require employers to consider applicants as individuals, not based on stereotypical assumptions. If a factory job requires a worker to lift forty pounds on a regular basis, an employer cannot express a preference for young male applicants based on the stereotyped notion that men are strong and older people and women are weak. Some women and older people can lift forty pounds, just as some young men cannot. Rather, the employer's job ad should state that the job requires "regularly lifting forty pounds."

In some rare circumstances, however, it is an objective fact that individuals who are members of a protected class cannot perform the job in question. For example, a filmmaker may hire only men for male roles, or a kosher deli may hire only Jewish people as butchers. In both of these examples, sex and religion are bona fide occupational qualifications (BFOQ). Both Title VII and the ADEA allow employers to limit a job to applicants of a specific group where the employer can prove that sex, religion, national origin or age is a BFOQ for the job in question. Race and color, however, can never qualify as a BFOQ.

Sidebar: Religious Institutions Expressing a Preference for Employees of a Particular Religion

Title VII expressly allows religious corporations and sectarian educational institutions to hire applicants of a particular religion. For example, a Catholic grade school could decide to hire a teacher because he is a Catholic rather than hire an applicant who is a Protestant. This exemption applies only to religion, however, the school may not discriminate in hiring teachers based on race, color, sex, national origin, age or disability.

Sidebar: Bona Fide Occupational Qualifications

Title VII allows an employer to make a hiring decision based on sex, religion or national origin if the employer can prove that being a particular sex, religion or national origin is a bona fide occupational qualification (BFOQ) for the job in question. The ADEA also allows the employer to make a hiring decision based on age if the employer can prove age is a BFOQ

The employer must prove that his hiring decision falls within the very narrow limits allowed by the BFOQ defense. The employer must show both:

1. that all persons of the excluded class would be unable to perform the requirements of the job; and
2. he requirements of the job directly relate to the essence of the employer's business.

The evidence that the employer presents must be objective and not based on stereotyped beliefs about persons in the protected class.

Years ago some airlines tried to defend their decision not to hire men as flight attendants on the basis that males were unable to provide reassurance to anxious passengers or give courteous, personalized service. The court held that even if this were true, the ability to reassure and give courteous service did not relate to the essence of the employer's business, which was the safe transport of passengers.

The BFOQ defense applies in very limited circumstances, such as for actors or fashion models.

Q: What types of questions may imply discrimination?
A: Direct questions relating to an applicant's age, family background or religious affiliation may indicate discrimination. Also questions or comments based on stereotyped notions may also imply discrimination.

Generally speaking, interview questions should relate to the requirements of the job, the applicant's qualifications, work experience and history. Even when the information sought is related to the job, the interviewer must be careful that the way the question is asked does not imply discrimination. For example, an employer trying to determine whether a female applicant is going to stay with the company for the next few years should not ask, "Do you plan to get married?" or "Do you plan to have children?" or "What kind of birth control do you use?" More direct, job-related questions seeking the same information might be:

• We are looking for employees who will make a commitment to the company. Is there any reason you might not stay with us for the next few years?
• What are your career objectives?
• Where do you see yourself in five years?

In the same way, suppose an employer is trying to determine a female job candidate's commitment to living in a particular area of the country. Then it is better to ask, "Do you intend to stay in the area?" rather than "Is your husband's employer likely to transfer him?"

If attendance is the issue, questions like, "Does your husband expect you to be home to cook dinner?" or "What will you do if your children get sick?" are indirect and inefficient. It would be more direct to ask, "How was your attendance record with your prior employer?"

Sidebar: How Employers Can Hire Without Discrimination

It helps to use a standard application form that avoids irrelevant questions. Avoid asking about age, height, weight, marital status, education or arrest record unless they relate to the job. For example, questions about height and weight may reject women or members of some ethnic groups who are usually smaller. Asking about marital status may suggest sex discrimination. Asking about disabilities is prohibited.

Employers and prospective employees both benefit when job openings are clearly defined. Employers should prepare a detailed job description for each position, specifying what the work is and what qualifications the employer requires. If both sides come to the interview with a clear idea of what the job involves, the interview is more likely to focus on the qualifications essential for doing the job or that have predicted successful job performance.

Q :How does the ADA affect an employer's ability to establish basic job requirements and work standards?
A: Job requirements and work standards that would screen out an individual based on his or her disability must be job-related and consistent with business necessity. Under the ADA, in order to be job-related, a job requirement must be related to the essential functions of the job and not merely an incidental aspect of job performance. For example, a job description for a receptionist position states that typing skills are required; however, the employer has never required the receptionist to type. This requirement, therefore, is not an essential function of the job, and requiring typing skills could have the effect of screening out an individual with only one arm or an individual who is a paraplegic.

Q : If an individual with a disability cannot perform an essential function of the job, can the employer refuse to hire him?
A: Not necessarily. The question is whether the inability to perform the essential function of the job is due to lack of qualifications or due to the disability. If the employer is hiring for a secretarial position and the applicant cannot type, then the employer could refuse to hire her even though she suffered from epilepsy. (See Sidebar discussion of "The Protected Class Under the ADA.")

If, however, the applicant possesses typing skills, then the question becomes whether, with a reasonable accommodation, she would be able to perform the essential function of the job. For example, an applicant for a secretarial position who is blind may be unable to use the word processor. However, if she is provided with a Braille keyboard she can use the word processor and would thus be able to perform the essential function of the job.

Sidebar: The Protected Class Under the ADA

The ADA protects "qualified individuals with a disability" from discrimination in employment. An individual with a disability is qualified if he "satisfies the requisite skill, experience, education and other job-related requirements." For example, in deciding whether a person with epilepsy is qualified to be a teacher, one would determine if she had a teaching certificate or a college degree in education. If not, then she is not qualified and is not a member of the protected class under the ADA.