The process of finding and landing a new job can be stressful and difficult. After weathering a storm of rejections during the application phase, applicants then find themselves thrust into the spotlight during the interview process. With the weight of a future career on their shoulders, some applicants may forget their rights. Others may never have known they had them in the first place.
In this guide, AAL will endeavor to outline certain things that employers may or may not ask or request of applicants during the recruitment process and will provide an overview of unlawful discriminatory hiring practices. Additionally, this guide will also point out some of the rights that applicants will have as future employees.
As a general matter, private companies can be as picky as they want when choosing which applicants to grant interviews to or ultimately hire. as long as their criteria are not discriminatory. A law firm has the discretion to decide to only hire interns from a particular law school, a small business to hire only locals, or to only hire applicants who show up to the interview in a blue polo shirt. There are, however, some notable exceptions.
Employers are not allowed to be discriminatory. For example, if an employer does not hire people with an accent, that could be considered discrimination based on national origin. A wide variety of federal acts prohibit discriminatory employment practices, including the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and Title VII of the Civil Rights Act of 1964.
It should be noted that there are both state and federal employment and anti-discrimination laws, and whether or to what extent they apply to a given employer and in a given situation can be very fact-specific. For example, Title VII of the Civil Rights Act of 1964 and the ADA only apply to employers with 15 or more employees, whereas the ADEA applies to those with 20 or more employees. On the other hand, the Equal Pay Act of 1963 applies to all employers, regardless of how many employers they have. And due to variances in state laws, certain discriminatory practices by an employer who does not meet the threshold number of employees to be subject to those federal laws may still be liable under similar state laws that do not have such thresholds but instead apply to all employers, regardless of how many employees they have.
During the application or interview process, an applicant will be requested to answer numerous questions. Some, like asking for the address or phone number of an applicant, are simply used to ensure that the applicant can be contacted or lives close enough to the workplace to reasonably commute. Other questions, like those about the applicant's work history, education, or personal references, are used to figure out if they are qualified.
Unfortunately, some interviewers may ask questions that are unlawful. Unlawful questions are those interviewers are not allowed to ask due to their being unnecessarily discriminatory or would require the disclosure of protected information. Examples of unlawful questions are those that pertain to the applicant’s:
When asked these questions, an applicant may politely decline to answer and ask that the questions be redirected to questions regarding their qualifications, experience, and overall suitability for the position.
In the digital age, a potential employer can find out a shocking amount of information about a potential applicant. Before making a hiring decision, there are many ways for employers to find out if a job applicant has done anything that the employer might find unacceptable. These may include drug testing, requests for proof of citizenship, and conducting general criminal background checks. With our digital footprints growing larger every day, job seekers should consider the likelihood that potential employers may also look through their social media accounts.
Other ways that an employer may seek to investigate an applicant’s habits and character include reviewing their credit reports, requesting character references, conducting searches of court records, driving records, property ownership records, state licensing records, and sex offender lists. While these practices may feel invasive, as long as the information is publicly available, a company is generally allowed to consider it in making hiring decisions as long as it is for legitimate and nondiscriminatory purposes.
Depending on the state in which an applicant lives, the scope and depth of the background check that an employer may conduct can vary. Some states have stricter rules about what kind of information can be used in a background check, while others have fewer rules.
For example, some states don't let employers ask about a job applicant's criminal history on the application or do a criminal background check until after they've made a conditional job offer. Other states may allow criminal background checks at any point during the hiring process. Additionally, some states may have laws that seal or expunge certain criminal records or limit the types of information that can be reported in a background check, such as misdemeanor offenses or arrests that did not result in a conviction.
Educational records like transcripts are usually obtainable by all employers as long as the applicant consents. Some records, such as military service records or medical records, are almost always considered confidential and may not be accessed. An employer may request a physical exam to assess an applicant's physical abilities or medical conditions that may affect job performance. However, the examiner can only tell the employer if the applicant can perform essential job functions with or without reasonable accommodations, and the employer cannot receive medical information beyond what is strictly necessary to assess the applicant's suitability for the job.
Finally, some records, such as bankruptcy and workers’ compensation records, are publicly available but are generally not allowed to be factored in by employers when making decisions regarding hiring, compensation, promotions, etc. On occasion, worker’s compensation records may be considered for very limited purposes if they are found to be relevant to the performance of specific functions essential to the job in question.
The hiring process is a two-way street. While applicants are eagerly seeking employment with all the benefits that it affords, employers are hiring because of a deficiency in their company that they need to address. In order to fill that position, employers may offer some incentives to lure in higher-quality applicants.
Telling applicants that they will be given a certain pay rate, benefits, or job security may give rise to an implied contract provided that the applicant reasonably relies on those promises as a basis for accepting the job. An implied contract is a form of legal obligation that is formed despite the absence of a formal contract. Some examples of promises that could lead to an implied contract are promising applicants a certain salary, benefits, job security, or other perks.
If an applicant accepts the job based on their reasonable assumptions, they may be able to pursue legal action against the employer if the agreed-upon terms are not honored by the employer. That said, applicants should always get their job offers in writing, including all relevant terms, including bonuses, pension contributions, vacation time, and other benefits.
If an applicant believes they have been subject to discrimination, they can file a complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC handles discrimination complaints from prospective, current, and former employees and addresses employer misconduct involving sexual harassment, racism, and any other discriminatory practices that are based on an employee’s:
If an EEOC investigation finds evidence of discrimination that justifies the complaint, it may decide to file a discrimination lawsuit on the complainant’s behalf. Sometimes the EEOC will decline to sue themselves but will instead provide the complainant with a "right-to-sue" letter, which allows the complainant to pursue a lawsuit on their own.
If you have suffered illegal discrimination in your employment or during the hiring process—whether it was an out-of-hand rejection of your application or you were asked unlawful questions during your interview process—you may be able to pursue a claim against those who discriminated against you.
An experienced attorney can zealously advocate on your behalf in order to get you the best possible outcome for your case. Using their knowledge of the law, trial strategies, and expert witnesses, your lawyer will be able to find proof of wrongdoing, such as unfair interview questions, a pattern of discriminatory rejections, or other proof of wrongdoing, and present it in the most convincing way for your case.
Through AAL you can find a number of experienced and dedicated attorneys who can help you seek the justice that you deserve.
*Disclaimer: Attorney At Law does not represent all lawyers in all states. There may be differences of opinion. It’s always advisable to consult with an attorney when in a legal situation.