Blatant discrimination still occurs in workplaces and in hiring. Clueless or untrained hiring managers sometimes either stumble into discriminatory practices unintentionally or display unconscious bias during interviews.
However, discrimination can be more subtle than flat-out asking someone their age, their marital status, or whether they’re pregnant during an interview. And discrimination in the hiring process can begin long before any interviews occur. Knowing how to identify discrimination during the hiring process will help you pick up on inappropriate language, processes, or unfair treatment, from the time you notice a job announcement through the application, interviewing, and job offer process.
Title VII of the Civil Rights Act of 1964 and court decisions interpreting that statute prohibit employers from discriminating on the basis of race, color, religion, sex, or national origin. This prohibition applies to hiring and firing decisions, pay, and the “terms, conditions, or privileges of employment.”
Under the same law, it is illegal for one to “limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee.”
While it’s jarring to see that the text of the law prohibiting sex discrimination uses the phrases “his employees” and “his status as an employee” (emphasis added), both the letter and the spirit of the law are clear: discrimination in hiring is illegal.
But how exactly does unlawful discrimination play out in the hiring process?
Intentionally or unintentionally, ads and job announcements can be discriminatory. For example, direct discrimination in job announcements would include ads that specify that only applicants of a certain age, gender, or religion should apply.
The only exception to this is what is called a “bona fide occupational qualification." Also known as a BFOQ, it may exist if consideration of a person’s sex, religion, or national origin is relevant and necessary for carrying out the particular job function in the course of the employer’s business. An example would be a job that involves intimate care for a person who cannot bathe or dress themselves, or where religious prohibitions dictate that genders cannot comingle—and if they did, this would “undermine the essence” of the business in question.
To legally limit the applicant pool to only people of a particular sex, religion, or national origin, the employer must show that no person of the excluded category could do the job without undermining the essence of the employer’s business.
Courts interpret claims that BFOQs exist very narrowly, and demonstrating that a limitation based on sex, religion, or national origin is a difficult standard for an employer to meet.
Employers rarely make the mistake of flagrantly excluding applicants based on race, color, religion, sex, or national origin in current times. But job announcements can still be discriminatory if they use language intended to exclude workers (“energetic,” “recent graduate” or “student” might be construed as age discrimination, even though older workers can be all those things), or if the jobs are only posted to sites that cater to a specific demographic.
Job descriptions that include gendered words (“waitress” instead of “wait staff” or “server), or exclusionary language based on national origin (“Latino” instead of “Spanish-speaking”) may indicate discriminatory intent.
Everyone who has pursued a job search in the last few decades has encountered automated application systems. What you may not know is that the programs behind these systems may also engage in discriminatory practices. For example, the software may contain instructions to exclude work histories with gaps of several months, which could discriminate against people who took family leave.
Artificial intelligence (AI) has been heralded as a potential cure to discrimination in hiring, as it supposedly eliminates human biases. But if the AI in use learned how to exclude resumes based on data describing successful employees in a non-diverse workforce, it will only find characteristics that describe the dominant type of employee in that cohort, whether that is white males under the age of 27 or women who attended Ivy League schools. AI is only as good as the data it learns from, and it isn’t good at understanding bias and discrimination issues.
Both hiring managers and job candidates have come to regard interviews as potential minefields of either liability or discrimination. Job interviews are supposed to be a tool to assess a candidate’s job-related skills and abilities. Questions in an interview should stick to objective measures that relate to the responsibilities of the position the interviewee is seeking.
But then there’s the small talk. It’s a misconception that questions about marital status, plans to have a family, or what church in town you attend are in themselves illegal. They are certainly uncomfortable, and a well-trained interviewer would never ask them. However, they can be flagged as evidence of an intention to discrimination, and they do become a legal issue if your answers to them are used as a reason not to hire you, especially if the employer hired a less-qualified, younger candidate or person of a different race with less relevant experience than you possess.
An interviewer who probes uncomfortably into your family or cultural traditions, or what languages you speak, when these factors are not related to the responsibilities of the job you are seeking, may be demonstrating illegal bias.
Proving discrimination in a job interview is difficult, as employers will rarely tell you why you didn’t get the job. They’ll say something vague like, “We went with a candidate we felt was a better fit,” or, “We found a candidate with experience that more closely fits the job description.” Employers have learned not to openly admit that they made a hiring decision because they were more comfortable with a younger person or a person of a different race.
If you believe you were discriminated against in the hiring process, document your experience as best you can and as soon as you can after the suspicion strikes you that discrimination may have occurred. For example, if everything was going swimmingly through two phone interviews, but the moment your in-person interviewer saw you their demeanor changed and the interview became perfunctory and abrupt, you might reasonably suspect discrimination based on race, color, age, religion, or national origin.
If your interviewer behaved in a way that indicated discomfort only after they saw you in person and you suspect racial discrimination, contact an experienced race discrimination lawyer. An attorney steeped in civil rights and discrimination laws can help you identify discrimination during the hiring process and assess whether you have a case for illegal discrimination that occurred during hiring.