“This job is limited to Caucasian, American-born U.S. citizens.” One would certainly hope, in the year 2021, that employers should know not to discriminate so blatantly against candidates and employees. The landmark Civil Rights Act of 1964 is nearly six decades old. Federal, state, and local governments have since enacted many anti-discrimination laws.
We know the vast majority of employers would never intentionally discriminate against anyone, but the sheer amount of anti-discrimination laws can be overwhelming or confusing for many managers. Here are four ways hiring managers often unintentionally run afoul of these laws.
1. Probing an employee’s or candidate’s military discharge.
Advertising your company as “veteran-friendly” or offering customer discounts for veterans can be a good way to engender respect for your business. In certain cases, employers can also get tax credits or deductions for hiring veterans. So, while it’s often appropriate to affirm a candidate’s or employee’s status as a military veteran, you should not ask about specific reasons for a discharge. Asking about the discharge could reveal medical (mental or physical) issues that shouldn’t be disclosed.
2. Venturing from “safe” small-talk topics.
It’s not good for you or your hiring manager to act like a robot when screening and interviewing candidates. An appropriate amount of small talk is expected when speaking with candidates and employees alike. Be careful about venturing into topics that touch on religion, politics, or even age. Stick to things like sports teams, the commute, or the weather.
3. Asking about a candidate’s or employee’s age.
Again, this subject might seem like innocuous small talk. Besides affirming that a candidate is old enough to work the position (for example, bartenders in Florida must be at least 18), you should avoid broaching the subject of age. The Age Discrimination in Employment Act (ADEA) forbids discriminating against employees 40 years of age or older.
4. Implementing policies that have disparate impacts on certain employees.
Here’s a somewhat surprising truth: treating all your employees the same way could end in a discrimination claim. How is that so? Through a disparate impact claim.
For example, is it discriminatory for a warehouse job description to call for candidates at least six feet tall? After all, it doesn’t specify sex or gender. The answer, probably, is yes. The median height for men over 20 is 5 feet nine inches, while the median height for women in the same cohort is five feet 3.5 inches. One could argue that the job’s height requirement screens out many more women than men. Although having tall employees might help your warehouse operation be more efficient, it’s still not a good idea to implement a height requirement.
Be Proactive—Speak With an Attorney
Intentional or not, workplace discrimination is a problem and will cost your company thousands of dollars if you don’t have legally sound policies. Before you so much as put one job description on Indeed or LinkedIn, speak with an experienced business and employment law attorney. Trembly Law Firm has helped countless entrepreneurs make sure their hiring, onboarding, and firing practices are in line with applicable laws. Call us today for your initial consultation.
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