Avoiding Illegal Discrimination in Hiring

Jennifer Chandler Hauge, Esq., and Melanie L. Herman, Esq.

Liability risks in hiring are serious and need to be addressed with proactive policies and procedures. Complicating matters is that there are many federal and state laws that create a web of restrictions on the hiring process.

The federal law that protects employees from most forms of illegal discrimination is known as "Title VII." However, there are actually a host of laws which together make up the federal civil rights protections we know today. Each state also has its own version of an anti-discrimination law, which in some cases, provides more protection than the federal law.

Federal Law Prohibitions Against Discrimination

Title VII, in combination with the Americans With Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Pregnancy Discrimination in Employment Act (PDA), prohibits discrimination in hiring decisions, or any employment decision.

A Summary

Title VII of the Civil Rights Act of 1964
(Applies to employers of fifteen or more employees). It is illegal to base employment decisions such as hiring, promotions, demotions, pay practices, and terminations on the characteristics of race, color, religion, sex (including the prohibition against sexual harassment), and national origin.

Age Discrimination in Employment Act
(Applies to employers of twenty or more employees.) Protects employees age 40 or older from discrimination in employment.

Americans with Disabilities Act of 1990
(Applies to employers of fifteen or more employees.) Prohibits discrimination against qualified individuals with a disability (those who with or without accommodation are capable of performing the essential functions of the position). Those who are protected include: currently disabled individuals, persons having a record of impairment, persons who are perceived as having an impairment or are related to or associated with persons who are disabled/perceived as having an impairment.

Pregnancy Discrimination Act of 1978
(Applies to employers of fifteen or more employees) Defines sex discrimination under Title VII as including childbirth, pregnancy and related conditions, and makes it illegal to refuse to hire on the basis of pregnancy. The PDA does not bar employers from requiring pregnant employees to meet objective standards of performance as long as those expectations and policies are applied equally to other employees.

Equal Pay Act
Prohibits paying different compensation to men and women for similar jobs, unless based on a "reasonable factor other than sex."

Employee Retirement Income Security Act (ERISA)
Prohibits discrimination in order to avoid paying benefits, e.g., discharging an employee just before her pension vests.

Immigration Reform and Control Act of 1986 (IRCA)
Prohibits discrimination in hiring based on citizenship, national origin, language spoken, or appearance as a non-American citizen.

State Anti-Discrimination Laws

All fifty states, the District of Columbia, Puerto Rico, and the Virgin Islands, have laws prohibiting discrimination in the workplace. Many state laws are more extensive in their coverage than the federal anti-discrimination laws, and many apply to employers with fewer than fifteen employees. This means that smaller employers must be aware of state requirements!

In some states, religious institutions and charitable and educational institutions controlled by or affiliated with religious institutions are exempt or partially exempt. Some states supplement federal protections by specifying that "marital status" and/or "sexual preference" or "sexual orientation" are protected categories. Many states specifically prohibit sexual harassment and others expand the definition of the protected category for age discrimination to persons age 18 or older. Other states specifically protect smokers and non-smokers from discrimination in employment, while still others prohibit discrimination on the basis of the employee's lawful use of alcohol and tobacco while off-duty and off-site.

Consequently, you should be familiar with the applicable laws in your state and municipality and recognize that those laws may expand or redefine the federal definition of "protected class." Be aware that these state laws are subject to constant review and revision in state legislatures.

Questions NOT to Ask During Hiring

Camp directors should be certain that all persons assisting in the interviewing of potential staff be trained in appropriate inquiries on applications and in interviews. No employers or their agents should make inquiries on the following topics:

1. The age of the applicant, their birthdate or when they graduated from college or high school. You MAY ask what schools the applicant attended, how many years the applicant attended each school and whether a degree was earned. If age is a bona fide occupational qualification (BFOQ) such as a minimum age required by law or by insurance companies to be a driver, applicants may be asked if they are at least that age.

2. How long the applicant has lived at his/her current address. You MAY ask whether the applicant has recently moved from another state or municipality.

3. The name of the applicant's church, synagogue, mosque, or pastor, minister, rabbi, etc. Any discussion of religion is out of bounds unless [your camp] is affiliated with a religious institution and being supportive of or practicing that religion is a job requirement.

4. In states where marital status is a protected category you should not ask whether the applicant would like to be called "Ms.," "Miss," or "Mrs.," or what the applicant's maiden name was, surname, or whether the applicant is married, divorced, single, or who resides with the applicant. You MAY ask whether the applicant has ever used any other name and what that name was.

5. How many children the applicant has, what school the children attend, their school schedules, or what childcare arrangements will be made.

6. How the applicant will get to work, unless owning a car is a bona fide requirement of the job.

7. Whether the applicant owns or rents a residence.

8. Any information relating to the applicant's bank or personal financial matters, including whether the applicant has any loans outstanding or whether the applicant has ever had wages garnished. (Such information can be obtained from a credit history report.)

9. Whether the applicant has ever been arrested. Check your state law before making inquiries into criminal records. Several states have laws that limit access to, the use of, or inquiries into an applicant's criminal records including arrests and/or convictions.

10. Whether the applicant has ever served in the military of another country. In some states military status is a protected category, but in those states you MAY ask an applicant to provide a copy of his or her discharge from the military, if you ask every applicant the same question and preface the request with: "if applicable."

11. Whether the applicant can speak or write any foreign languages, unless doing so is a bona fide job requirement.

12. Whether the applicant is for or against any candidate for public office, what political party s/he belongs to, or whether s/he is for or against unions.

13. What clubs the applicant belongs to, or how he or she spends her spare time.

14. How many days the applicant missed work in the last year and whether the applicant filed any workers compensation claims at his/her previous place of employment. You MAY tell the applicant what the expectations are for attendance and ask about the applicant's ability to meet those expectations, as long as the questions are not designed to elicit disability related information. For instance, you MAY ask, "How many Mondays and Fridays did you take off last year which were not approved days off?"

15. Whether the applicant has any disabilities, impairments, recurring illnesses, whether s/he has ever been hospitalized, treated by a psychiatrist, psychologist, or counseled for any mental condition, whether the applicant has had any major illness or about any health-related concern, mental or physical. You MAY ask the candidate whether s/he is capable of performing all the job duties of the written job description. You should give a written description to the candidate to review.

16. Whether the applicant uses lawful drug and alcohol products, smokes, takes any prescription drugs, has ever been addicted to drugs, or alcohol, is undergoing treatment for addiction disorders, or substance abuse.

17. Whether the applicant is good at handling stress or has ever demonstrated any physical response to stressful working conditions. You MAY ask what the applicant does to respond to stress or what the applicant considers to be a stressful work experience, in an effort to elicit whether the applicant is qualified to handle a particularly stressful job. If too many questions on this subject are asked, however, it appears that the questions are designed to elicit disability information.

18. Questions about an applicant's former employers or acquaintances that elicit information specifying the applicant's race, color, religious creed, national origin, ancestry, physical handicap, medical condition, marital status, age, or sex. You MAY ask for names of persons willing to provide professional and/or character references for the applicant, and by whom they were referred for a position.

Note: These and many more topics related to Employment Practices are included in this book. Please contact the ACA Bookstore at www.ACAcamps.org/bookstore or the Nonprofit Risk Management Center at www.nonprofitrisk.org. While the word "nonprofit" is in the title, the principles of appropriate employment are not limited to nonprofits. The book is currently available at a $10 discount by calling (202) 785-3891 to place an order. Mention that the book is currently discounted to members of the American Camping Association.

Originally published in the 2001 Fall issue of The CampLine.