Discrimination Liability and Hiring Best Practices


There are a host of factors that can influence your hiring decisions. You may be seeking specific educational requirements, experience in the workforce, or critical skills required to perform job duties. While many of the qualities that you are seeking are perfectly legal to scrutinize, you want to make sure that you are not violating the law through discriminatory hiring practices. Discrimination in hiring based on sex, age, religious affiliation, pregnancy, national origin, disability, or sexual orientation is illegal and could lead to costly lawsuits.

To ensure compliance with state and federal employment laws, remember that certain hiring practices will be interpreted as discrimination. Some employers may use polices or practices that disproportionately negative impact on some applicants—these actions will be interpreted as discrimination by the EEOC. Whether you are in the early stages of posting a job or you are reviewing candidates for a position, be sure to follow these guidelines:

Neutrality in Job Postings

When writing your job description or advertisement, remember that it is illegal to show any preference related to race, sex, religious affiliation, age, or other protected class. Even using language like “recent grad,” or “new grad” could be interpreted as a preference for younger employees, so be careful of your wording when describing your ideal hire.

Background Checking

Background checks may include credit history, criminal records, or even social media accounts. While most instances of background checking are legal, employers must be sure to follow disclosure laws and inform applicants if a negative decision is being based on information derived in a background check. Employers cannot use background checks, Facebook or LinkedIn, or other social media accounts to uncover information that could be used in discriminatory manner.

Word of Mouth Recruiting

The EEOC has found that recruiting by word of mouth in specific communities could be interpreted as discriminatory if the result is a workforce comprised of that group. For example, reliance on word of mouth recruiting in a Hispanic community that results in an all-Hispanic workforce could be considered discriminatory.

Checking References

It is smart to check references before you hire an employee, but make sure that your inquiry is clear of any discriminatory or leading questions that could indicate a discriminatory preference. Asking about anything related to an individual’s race, sex, religion, disabilities, or other protected class could be considered a violation of the law.

Equal Opportunity Employer

Specifically stating in your ad or job posting that you are an Equal Opportunity Employment is one way to protect yourself from allegations of employment. Here is sample text that has been used in the past to protect employers when advertising or posting new positions.

We are an “equal opportunity employer.” We will not discriminate and will take “affirmative action” measures to ensure against discrimination in employment, recruitment, advertisements for employment, compensation, termination, upgrading, promotions, and other conditions of employment against any employee or job applicant on the bases of race, creed, color, national origin, or sex.

Age Limits and Hiring for Apprenticeships

In general, it is illegal to discriminate based on age for hiring, training, or apprenticeships programs. However, there are some situations when an employer may be allowed to set age limits for participation in an apprenticeship program. For example, a program that is designed for high school or college age students may be acceptable and in compliance with EEOC regulations. If you have specific questions about hiring trainees or an apprenticeship program, you should consult with a local employment law attorney.

Evidence of Intent to Discriminate

Be very careful when making any inquiries related to an applicant’s membership in organizations, clubs, or societies that could indicate sex, national origin, disability status, age, religion, or ancestry. Whether scrolling social media account “Likes” or asking directly about membership, you could be opening yourself up to the possibility of discrimination accusation. Questions related to group affiliation should generally be avoided.

Photographs of Employees

Asking for photographs of your applicants is not a good idea and should be avoided. Think about it this way: a photograph could provide you with a wealth of information about an applicant that could be used in a discriminatory manner. Even if you have no intention of using a photograph for discriminatory purposes, the photograph could be used as evidence of discrimination. It is best to keep it simple in the hiring process and stick with a resume. If you need a photograph, you can always ask for one after an offer of employment is made.

Interviewing Applicants

Discrimination in hiring should be avoided at every stage, including the interview process. Employers have often made the mistake of asking seemingly innocuous questions and then been hit with an allegation of discrimination. In general, never ask questions related to a person’s race, sex, age, disability, or national origin. Be careful of conversational questions that could have further implications, like:

  • “Do you have children?” or “Are you planning to have children?”
  • “Are you married?” or “Who do you live with?”
  • “Where are you from?” or “What is your background?”
  • “What year did you graduate high school?” or “How old are you?”
  • “Did you suffer an injury?” or “Do you have any disabilities?”
  • “Do you use drugs or alcohol?”

Sexual Discrimination

Remember that sexual discrimination has been broadly interpreted to include gender identity, sexual orientation, and pregnancy. Never make any implication about gender, orientation, or pregnancy in any job posting and be very careful about such implications in the interview process. These protections extend through employment and termination. State laws may vary in level of protections, so be sure that you check local and state policies related to your rights and obligations.

Making a Job Offer

Discrimination in hiring means selecting a candidate based on criteria other than his or her qualifications. Before making an offer, consider your reasons for selecting a certain applicant. Are they really the best person for the job? Was there another applicant with more experience? Sometimes it is difficult to identify our own prejudices so be sure that you review your own decision with the same scrutiny as the law. You should be especially wary if your selection discounts another applicant because of sex, national identity, religion, race, disability, or age.

Liability for Small Businesses

Even though EEOC regulations cover employers with more than 15 employees, small business owners should still be concerned about allegations of discrimination. Some states do not exempt small business owners from the law. Regardless of the number employees in your company, you are still on the hook for any lawsuits filed by applicants who believe they suffered discrimination in the hiring practice. Implementing fair hiring practices and knowing the law is worth the investment and will also help to ensure that you are truly selecting the best person for the job.


About Author

Kate Leismer

Kate Leismer is a licensed attorney with experience in business and employment law. She has worked for several law firms in the U.S., the ACLU and is a former editor for University of Minnesota's Journal of International Law. She is currently a freelance writer living in Berlin. For more information about her writing, research, and legal experience, please visit www.kateleismer.com