All employers should be concerned about the rights of employees: where do rights start and how far do they go? The experts address pre-and-post employment concerns.
By J. Tom Harrington, Principal
and R. Scott Oswald, Managing Principal
The Employment Law Group, PC (http://www.employmentlawgroup.
Most workers know that they have rights that entitle them to be free of illegal discrimination and from retaliation for reporting concerns of illegal discrimination in the workplace. However, many workers do not realize that they have rights to be free from discrimination even prior to being hired.
Rights and Discrimination
To start, the major anti-discrimination laws contain protections for job candidates. For example, Title VII, which prohibits discrimination because of race, color, religion, sex, or national origin, prohibits employers from failing or refusing to hire any individual because of illegal discrimination.
Similarly, the Age Discrimination in Employment Act prohibits employers from failing or refusing to hire any individual because of the individual’s age. The Americans with Disabilities Act prohibits any employer from discriminating against a qualified individual on the basis of disability in regard to job application procedures and in hiring.
Employers abide by these protections in a variety of ways. Employers may forbid questions relating to these protected classes on their applications or in their interviews. Employers may ask job candidates to affirm that they are of legal working age instead of asking for their birthdates immediately. Employers may conduct telephone interviews only to avoid meeting candidates in person and to avoid learning about their protected classes.
However, employers may also violate these protections in a variety of ways. In particular, employers often come under fire for asking inappropriate questions during interviews. An employer who is hesitant to hire candidates from particular countries might ask pointed questions about where the candidate is “from.” An employer who wants to know how old a person is might ask questions about when the candidate is planning on retiring.
Employers may be trying to ask employees questions that go to the employers’ needs for the position, and may not mean to ask questions about protected classes. For example, employers can limit who they hire based on the amount of time that they need a worker to be on duty.
This may, for example, restrict the employer from hiring a parent who must pick their children up from day care at a certain time. The employer may also be concerned about hiring people with children because the job requires frequent travel or overtime. That does not mean that the employer can ask an interviewee if they have children. Instead of beating around the bush, the employer should ask if the interviewee can commit to working the necessary hours.
Similarly, if an employer needs to hire an employee who speaks a certain language and who has knowledge of a certain culture, the company should simply explain how it is relevant in the job description and make their needs part of the qualifications for the position.
Questions about age, race, disability, and more should raise concerns for job seekers as they are thinly disguised ways of asking about a person’s protected classes. If an interviewee is asked a question that she is concerned about, she should ask the interview for clarification as to how it is relevant to the position.
For example, if a interviewee is asked about when she plans to retire, she should ask what the employer about the goals for the position and the tenure of their employees. The employer may be trying to determine the age of an employee, or may, inartfully, be trying to determine if the interviewee is planning to work long enough to complete a major project for the company.
If an interviewee is not hired for a position and is concerned that discrimination played a factor in her non-selection, she should analyze the contents of the interview and consider what, if anything, went poorly. It is also possible to call the company’s human resources office to ask for feedback on the interview.
As explained above, potential employees have the same rights to be free from discrimination as employees, and they also have the same obligations. If an interviewee is concerned that she was not hired due to discriminatory reasons, she should outline those reasons and report them to the company.
If the interviewee will have other opportunities to work for the company in the future, the interviewee should clearly explain to the company why she was qualified for the position and why she is concerned about discrimination in the selection.
The interviewee may also file a charge of discrimination with the U.S. Equal Employment Opportunity Commission or her local or state human rights commission.