Steps for Avoiding Discrimination in Hiring

As a business owner, it’s imperative to follow state and federal employment laws when executing all business operations, including throughout all stages of hiring — from conducting fresh interviews to layoffs. Discrimination is just one of many illegal practices the law doesn’t tolerate, so it’s important to understand what it looks like and how to avoid it when hiring new employees. 

To prevent discrimination means establishing a tolerant company culture. You should reflect on where discrimination may occur beyond the office environment. To nip it in the bud, you need to look at your company’s hiring procedures to ensure that everyone gets a fair shot at working for you. 

In simple terms, discrimination exists when a person is treated differently due to a personal characteristic or trait that, for the most part, they can’t change. An example of discrimination might be refusing to extend an employment offer to a qualified candidate due to their race or where they’re from. Federal law prohibits discrimination based on these and other factors, while Colorado anti-discrimination laws extend and strengthens protections for minority groups.

Quick History Lesson: The Civil Rights Act of 1964

In 1964, President Lyndon B. Johnson signed the Civil Rights Act. The Act prohibited discrimination in public places, provided for the integration of schools and other public facilities, and prohibited employment discrimination. Of all civil rights measures up until that point in time, this law covered the widest number of bases, making it a landmark civil rights and labor law in the United States.

Title VII of the Civil Rights Act Applies to Employers

The section of the law that applies to private-sector employers is Title VII Civil Rights Act of 1964. This title establishes equal employment opportunity and prohibits discrimination by covered employers on the basis of race, color, religion, sex, or national origin. Title VII applies to employers with “15 or more employees for each working day in each of twenty or more calendar weeks.” Title VII also prohibits employers from discriminating against workers because of their association with a person of a particular race, color, religion, sex, or national origin. So, an employer may not discriminate against a person who is in an interracial marriage or who has a disabled family member.

Over time, Title VII has been amended with additional legislation to prevent discrimination due to pregnancy, age, and disability. These measures are defined in the Pregnancy Discrimination Act of 1978, the Age Discrimination in Employment Act, and the Americans with Disabilities Act of 1990. Under the Equal Pay Act, employers are also barred from paying men and women different rates for equal work.

Title VII applies to all employers with partial and whole exceptions for:

• Federal government
• Federally-recognized Native American tribes
• Religious groups
• Nonprofit private membership organizations.

While it may seem obvious to avoid refusing an opportunity to someone based on any of these characteristics, these rules are not always straightforward in the real world. If you deny a candidate a job opportunity, for example, because you’re concerned that their work will be interrupted by needing to care for a sick family member, this could be viewed as discrimination by the courts should the candidate ever file a complaint against your company.

The Equal Employment Opportunity Commission or EEOC and state fair employment practices agencies enforce Title VII. If you ever face a lawsuit for discrimination, you may expect these agencies to investigate your employment practices, and they may even file lawsuits on your employees’ behalf.

So, how can you avoid discrimination when hiring new employees?

Understand All State and Federal Anti-Discrimination Laws

For the most part, employers and employees are aware of federal protections for employees; however, each state tends to have its own set of laws that employers must follow in addition to federal laws. If you’re a Colorado-based employer, you should be aware of laws like the Colorado Anti-Discrimination Act, which prohibits discrimination due to a person’s sexual orientation in addition to disability, creed, race, color, sex, age, national origin, or ancestry. Being aware of state laws will help you remain compliant and avoid legal hurdles.

Consider Bona Fide Occupational Qualifications Carefully

There are times when it might make sense to discriminate based on a protected factor, for example, when hiring people whose duties might include cleaning bathrooms. You might want to hire a male employee to clean the men’s bathroom and a female employee to clean the women’s bathroom. Discrimination against a protected class might be protected if it’s a bona fide occupational qualification. 

A bona fide occupational qualification or BFOQ is a qualification that an employer may consider when making decisions about hiring and keeping employees. The qualification should relate to an essential job duty and should be necessary for the operation of your business.

Review Your Job Postings Closely

Hiring employees starts with advertising available positions within your company. Job posts shouldn’t mention any of the protected classes. You can also include your anti-discrimination policy directly in the posts. Most companies use language like:

“[Insert Your Company’s Name Here] is an equal opportunity employer and does not discriminate against any employee or job applicant on the basis of race, color, gender, national origin, age, religion, disability, or sex.”

Stick to Inclusive Interview Questions When Hiring

Hiring managers have all sorts of preferences when conducting interviews, and this might be a good step in the hiring process to review when identifying procedures that may lead to discrimination. Whether you prefer one-on-one or group interviews, your hiring managers should steer clear of questions that touch on race, religion, sexual orientation, or any other aspect covered by anti-discrimination laws.

Hiring managers should only require candidates to answer questions that give them an understanding of the candidate’s qualifications for the position for which he or she applied. See to it that anyone who communicates with job candidates understands the company’s anti-discrimination policy. When training individuals on proper hiring procedures, give them opportunities to conduct practice interviews and offer feedback on their performance.

Prepare Your Hiring Staff to Answer Tough Questions about Employment Practices

While your staff might avoid sensitive topics during the interview, the interviewee may not. Your interview staff should know how to answer questions about company procedures for protected groups. Examples of these questions might be:

• Does the workplace provide accommodations for transgender individuals?
• I cannot work on certain holidays due to my religion. Will this affect my employment?
• I wear religious attire that might clash with your company’s dress code. Will you provide a religious exemption to the dress code?

Trust a Colorado Employment Lawyer to Help You Improve Your Hiring Practices

When taking a birds-eye view of your company’s employment policies, you might consider working with a Colorado employment attorney. An attorney like Nathan Davidovich can provide invaluable insight that can help you improve your business operations and avoid procedures that can put you at risk of a discrimination lawsuit. He can also help you draft a bullet-proof employee handbook that outlines your company’s most important policies so that all of your employees can access them easily. 

For a consultation, contact The Davidovich Law Firm at (303) 825-5529 or complete our contact form.