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How to Identify Discrimination in the Hiring Process

HomeBlogHow to Identify Discrimination in the Hiring Process
November 29, 2021

Discrimination in the employee hiring process happens when an employer or hiring manager treats an applicant unequally or unfairly because they have a protected characteristic or belong to a protected class. Generally speaking, employers must not refuse to hire anyone because of their: 

  • Color
  • Race
  • National origin
  • Ancestry
  • Religion
  • Mental or physical disability
  • Sex, including childbirth, pregnancy, and related conditions
  • Age
  • Marital status
  • Genetic information
  • Sexual orientation
  • Medical condition
  • Gender, gender expression, gender identity
  • HIV/AIDS positive status
  • Veteran or military status 
  • Political affiliations or activities
  • Status as a victim of domestic violence, stalking, or assault 

It’s also crucial to note that some cities in California have enacted more laws that protect additional characteristics to extend protections to more workers. San Francisco, for instance, considers weight and height as protected characteristics

Special Exceptions to Non-Discriminatory Hiring Protections

In general, federal and state equal opportunity laws ban the use of hiring inquiries and processes that disproportionately, intentionally or not, screen out applicants due to their protected status when the hiring practices cannot be justified by a specific business purpose. But there are certain exceptions, which includes: 

  • Nature of Veteran or Military Service: Employers must allow job applicants to include details about their military service in the skills or experience section of their applications. However, any questions related to the service or type of discharge must only be asked when the details sought are relevant to the job position.
  • Ancestry or National Origin: Employers could ask about the languages that job applicants can speak, write, and/or read if the use of a language other than standard English is required for the job. Otherwise, doing so without proper justification is a violation of federal and state law if the job position doesn’t need perfect English skills. 
  • Criminal Convictions and Arrests: Employers must not ask applicants about arrests because, unlike convictions, arrests are not reliable proof that the applicant has previously engaged in any criminal activity. This means that an exception based on an applicant’s arrest record would only be justified if the conduct might be job-related and recent and whether the applicant actually committed the crime for which they were arrested. As for convictions, whether there’s a business purpose to exclude convicted applicants from specific job positions would depend on the job’s specific nature, the offense’s severity and nature, and the duration of time since the applicant’s incarceration or conviction. 
  • Religious Affiliation: Employers can state regular hours, days, or shifts required at work but must also state they provide reasonable accommodations as long as they don’t pose undue hardships.
  • Mental or Physical Disability / Medical Condition: Employers may ask if applicants could perform the job duties and state that the job offer might be contingent upon passing job-associated physical and/or mental examinations.

Seek Legal Guidance from an Experienced San Francisco Discrimination Attorney Today

If you believe that you have been discriminated against because of a protected characteristic, you are entitled to various legal remedies under federal and state employment laws. You can learn more about them by getting in touch with Olivier Schreiber & Chao LLP. Schedule a free consultation with our San Francisco discrimination attorneys by sending us a message online

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