How to Avoid Discrimination Charges

​EACH YEAR, the U.S. Equal Employment Opportunity Commission (EEOC) handles thousands of cases in which job applicants claim that they were refused a position for a discriminatory reason. According to EEOC statistics for 2009 (the most recent available), 93,277 charges were filed.

Many claims are found to be valid. More than $376 million in monetary relief was awarded to thousands of victims of discrimination. These statistics reflect discrimination in a broad range of employment-related situations including hiring, firing, pay, job assignments, promotions, training, and benefits.

While most regulations governing discrimination apply to businesses only if they have the specified threshold number of employees (usually a minimum of 15), it is good policy for companies of any size to avoid even the appearance of discrimination. The first step is to become familiar with the laws, regulations, and legal precedents governing such claims.

Typical Cases
The Civil Rights Act of 1964 was enacted to make discrimination based on race or gender illegal. Over the years, it has been amended several times to expand the covered groups. Title VII of the Civil Rights Act makes it illegal to discriminate against an applicant based on race, color, religion, national origin, or sex.

The EEOC reports that the most commonly alleged types of discrimination are based on race, accounting for 36 percent of the charges filed in 2009. Following closely behind are sex- or gender-based discrimination suits, which made up 30 percent of the charges in 2009. Race and gender suits took the top two spots in EEOC statistics from 1997 through 2009. (EEOC suits often involve more than one type of alleged discrimination, so the number of cases filed by type will add up to more than the total cases filed, and adding up the percentage of cases filed by category may total more than 100 percent of all cases filed.)

The more prominent cases involving gender or race discrimination frequently result in the offender paying millions of dollars in restitution and back wages. In March 2010, for example, Wal-Mart was ordered to pay $11.7 million in back wages, compensatory damages, employer taxes, and administration fees.

The original charge was that from 1998 through 2005, the Wal-Mart Distribution Center in Kentucky denied jobs to female applicants who were as qualified as male applicants or more qualified than their male counterparts. Wal-Mart asserted that the jobs were not suitable for women and that the job search, therefore, focused on males between the ages of 18 and 25; the EEOC rejected that defense and determined that the company had violated the law.

Following closely behind race and gender on the 2009 statistical chart, discrimination based on national origin accounted for 11.9 percent of cases, while religious discrimination accounted for 3.6 percent.
 
In 2005, for example, Abercrombie and Fitch was ordered to pay $40 million to compensate several thousand minority and female applicants whose claims of discrimination were found to have merit. And in 2009, an Oklahoma store was charged with discrimination because it failed to hire a Muslim applicant due to her wearing a religious head scarf known as a hijab.

Age discrimination. The Age Discrimination in Employment Act of 1967 (ADEA) was enacted to protect applicants and employees from age-related discrimination. According to the EEOC’s 2009 statistics, age is a factor in 24.4 percent of charges.

This was the case in the 2010 ruling against the Community College of Baltimore County, which was ordered to pay $50,000 in restitution for violating the ADEA. Although the victim had worked for the college for several years as a registration clerk, she was denied an academic advisor position due to the fact that she was 60 years old.
 
Disability. Similar to the protection offered by the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990 (ADA) protects those with physical or mental impairment from discrimination during the hiring process and while employed.

Claims related to disabilities accounted for 23 percent of charges in 2009. In a recent case, for example, a deaf applicant was refused a job as a stock clerk at Smith Personnel Solutions due to her physical disability. Although she had previous experience as a stock clerk, the staff refused to take her application and informed her interpreter that a job was not available. In September 2010, the business was ordered to pay $184,400 to the applicant.

Best Practices
Not violating the Civil Rights Act begins with the hiring process. To reach a hiring decision, employers naturally want as much information as possible, but some information is off limits, and there is a fine line between asking questions that directly relate to the job description and questions that will expose the company to charges that it was trying to discriminate against certain types of applicants.

Managers should focus questions on issues directly related to job requirements, such as knowledge of applicable software. Interviewers should never ask about the applicant’s race, religion, marital status, age, or national origin.

For example, it is illegal to ask: What is your native language? Rather than asking a question that may reveal the applicant’s national origin, the managers should ask which languages the applicant speaks if that is relevant to the job.

It is illegal for a manager to ask: What religion do you practice or what religious holidays do you observe? If availability and scheduling conflicts are a concern, the interviewer can ask applicants what days they are available to work and if they can work during the required schedule.

Another illegal question is: Typically a man does this job. How do you think a female will handle it? Refrain from asking questions that specifically target a gender. Instead, ask general questions regarding applicants’ skills or qualifications that enable them to perform the functions of the job.

Female applicants are often under close scrutiny because of their marital or familial status. That is not legal.

Questions that may be deemed illegal because they discriminate based on gender include: Are you married? Are you pregnant or do you plan to become pregnant? If you become pregnant, will you quit your job? Do you have a babysitter? Do you have children?

Instead, managers should inquire about an applicant’s ability to perform the job during the required schedule. If overtime is anticipated, a manager may inquire whether the applicant can work those hours.

Managers must also be wary of asking questions that create the impression they are discriminating due to a candidate’s age. When interviewing applicants, managers may want to ensure that someone is mature enough to handle the job responsibilities or that an older employee isn’t just biding their time until retirement. However, managers must be aware that any question related to age can open up the door to legal problems.

Under the ADEA, it is illegal to ask an applicant his or her age. Instead the employer should ensure that the applicant is legally old enough to work for the company. If necessary, ask if the applicant is over the age of 18. Similarly, it is illegal to ask someone when they are thinking of retiring. Instead, questions should center around the applicant’s short- and long-term career goals.

Similarly, managers must be cognizant of protections regarding those with disabilities. Though it is important for managers to determine whether an applicant can successfully fulfill the job requirements, there are certain questions that violate the ADA and that may result in an EEOC investigation. Such questions include: Do you have any physical or mental disabilities? How many sick days did you use at your last job? Have you had any recent illnesses or surgeries? What is your current weight and height?

For many employers, the purpose of these questions is to determine the applicant’s ability to perform the job. However, an applicant’s physical or mental disabilities cannot be a factor in the hiring decision. Instead, a manager should ask whether the applicant is able to perform the basic functions of the job.

Finding the right candidate is a challenge. To rise to that challenge, employers often ask questions they feel are innocent to get more details about the applicant. However, it is important to ask only those questions that directly relate to the applicant’s ability to perform the job responsibilities during the required work schedule.

With that in mind, managers should develop a clear outline of the job responsibilities, tasks, and functions before beginning the interview process. They can then create an outline of questions based directly on the job. By entering the interview prepared with questions that are legally acceptable, managers can help the company avoid a discriminatory charge from the EEOC.

Andrew Jensen is CEO of Sozo Firm, Inc., a management consultancy located in Shrewsbury, Pennsylvania.