Bias and Protections in Hiring

Seeking out diverse candidates is a human resource best practice. Having a policy of recruiting diverse candidates reflects an awareness of demographic and socio-cultural trends as well as allows your company to tap into the broadest range of expertise, skills, and global and cultural insight—factors that drive growth and innovation.

However, we still live in a society where individuals who belong to a majority group often benefit from a system that places minority groups at a disadvantage. As a Society for Human Resource Management (SHRM) article emphasizes: “Discrimination costs employers millions of dollars every year, not to mention the countless hours of lost work time, employee stress and the negative public image that goes along with a discrimination lawsuit.”

Equal employment opportunity isn’t just the right thing to do, it’s the law. Specifically, it’s a series of federal laws and Executive Orders designed to eliminate employment discrimination. Illegal discrimination is the practice of making employment decisions such as hiring, compensation, scheduling, performance evaluation, promotion, and firing based on protected characteristics such as race, gender, age, disability, or religion in a way that is prohibited by law. There are currently seven categories protected under federal law: age, disability, genetic information, national origin, pregnancy, race and color, religion, and sex.

Hiring Criteria

Some hiring criteria may be related to a particular group an applicant belongs to and not individual abilities. Unless membership in that group directly affects potential job performance, a decision based on group membership is discriminatory. For instance, some jobs may require the employee to perform a physical task, such as lifting and carrying heavy objects. In such cases, the physical capabilities of applicants may be considered. However, most office jobs do not have such physical requirements, so it is discriminatory to ask about physical capabilities.

To combat hiring discrimination, in the United States there are numerous city, state, and federal laws that prevent hiring (or not hiring) based on various group-membership criteria. For example, did you know it is illegal for a potential employer to ask your age in an interview? Did you know that an employer cannot ask you whether you are married, a U.S. citizen, have disabilities, or what your race or religion is? They cannot even ask questions that might shed some light on these attributes, such as where you were born or who you live with. These are only a few of the restrictions that are in place to prevent discrimination in hiring.

Federal Anti-discrimination Laws

In the United States, federal anti-discrimination laws are administered by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC’s mission is to enforce federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, age (40 or older), disability, or genetic information. It aims to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace.

Note that laws are subject to interpretation. For example, an EEOC notice^[1] emphasizes that their interpretation of the Title VII reference to “sex” is broadly applicable to gender, gender identity, and sexual orientation. And, further, that “these protections apply regardless of any contrary state or local laws.”

Note that state and local laws may provide broader discrimination protections. If in doubt, contact your state Department of Labor for clarification. 

Complying with the law reduces a company’s legal risk and an equal opportunity environment may increase employee productivity, retention, and morale. Businesses may also be eligible for tax benefits associated with making your business accessible to or hiring individuals with disabilities. For additional information, refer to Appendix A of the EEOC’s “ADA Primer for Small Business.”

More Resources Online

EEOC’s Digest of Equal Employment Opportunity Law: This publication includes feature articles on timely issues in equal employment opportunity law, as well as summaries of recent Commission decisions and federal court cases, as they affect Federal government employees.

EEOC Publications, Including discrimination fact sheets

---