Is Discrimination Present in Your Small Business Hiring Practices?

Discrimination at work is making the news quite often these days, but typically, the stories focus on discrimination against people who have already been hired. Just as important, but less often discussed, are the rules that apply to discrimination in hiring.

If a job candidate who doesn’t get hired suspects they were rejected for a reason that has nothing to do with their ability do the job, they could sue your business for discrimination in hiring. That’s something no business wants to suffer.

Here’s an overview of some important things to know when you’re hiring—and some things you might be doing wrong without knowing it.

Social media status

Using social media to make a hiring decision is a tricky legal area fraught with discrimination landmines. If you plan to review a person’s social media history as part of the hiring process, make that clear in the job posting as well as during the interview. Conduct the same type of social media review for all candidates, being sure to focus on aspects of their social media presence that relate to the job—not to their status as a protected class of employee, such as their age, race, religion or gender.

For instance, if you’re hiring a salesperson, investigating how many contacts a candidate has on LinkedIn and how active they are on the site is relevant to the job at hand. You might decide that the job candidate is not active or fluent enough at social media to fit your needs, and that’s a reasonable part of the hiring decision.

However, if you see the person posts on Facebook about their church and decide not to interview them because you don’t approve of their religion, that is discriminatory.

Race or national origin

There’s a difference between national origin and citizenship status. The federal government requires all employers to verify new hires’ citizenship status using a Form I-9, Employment Eligibility Verification. In fact, 13.75% of employers in the survey have had to reject a job candidate because the candidate could not legally work in the U.S.

Rejecting a job candidate based on race or national origin is different. For example, suppose a job candidate looks equally qualified as all of the other candidates on paper. However, because he appears to be Hispanic, you assume he might not have the legal right to work in this country. You don’t want to get excited about a good candidate and then not be able to hire him, so you decide not to even bother interviewing him. That’s discriminatory.

Age discrimination

There are some situations where a job candidate’s age can legitimately enter into the qualifications you consider. The Fair Labor Standards Act sets 14 as the minimum age for hiring and regulates the number of hours that can be worked by minors under age 16. Minors may also be restricted from certain hazardous work such as driving motor vehicles and operating heavy equipment. An employee who will be serving alcohol or working in a bar setting will need to meet your state’s requirements for the legal drinking age.

In most cases, however, an adult job candidate’s age is not relevant in hiring. This is especially important to keep in mind when dealing with older candidates. The Age Discrimination in Employment Act (ADEA) forbids workplace or hiring discrimination against people who are age 40 or older.

To avoid accusations of age discrimination, don’t ask candidates to include their age on job applications (unless it is relevant to the job, as in the case of minors or serving alcohol) and don’t ask how old they are during the interview.

Unintentional discrimination

Discrimination in hiring can occur unintentionally when employers make assumptions about job candidates. For example, if part of a job’s duties includes working on Sundays, you might assume a job candidate who mentions her active role in her church would not be interested. Instead of jumping to conclusions, ask her if she is willing to work on Sundays.

Your recruitment policies may also unintentionally expose you to discrimination charges. For instance, if your job ads ask “recent college graduates” to apply, that can be construed as wanting someone young in the job. Instead, you can use language like “entry-level position” to convey that the job is for someone with limited experience.

Protected categories covered by the Equal Employment Opportunities Commission (EEOC) include race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability and genetic information. Ensuring your hiring practices are not discriminatory is a complex business. You can learn more at the Department of Labor website, the EEOC website or by working with an HR consultant or attorney with experience in this area.

If you have concerns about this—or any other aspect of starting or running a business, the expert mentors at SCORE can help. Find one today!

Blog courtesy of SCORE

Author: Rieva Lesonsky