Which of the scenarios below demonstrates discrimination?
- An applicant is not hired for a position that requires speaking on the phone all day because she is not fluent in English and her strong accent makes her difficult to understand.
- A hiring manager and other team members involved in the interview process decide not to hire an applicant whose personality seems to be a poor fit for the company.
- A company policy regarding weight standards that result in an overweight applicant not being hired.
If you answered yes to any of these situations, you are wrong!
As unfair as these practices may seem, (particularly to the person who did not get hired for one of them) not one of them is considered discriminatory according to law.
However… They may be deemed discriminatory if the decision was influenced in whole or in part by race, color, religion, sex, national origin, disability, genetic information, or age.
Are your words actually implying discrimination?
In Abrams v. Department of Public Safety, a Second Circuit court vacated a decision in favor of the defendant in a case in which a minority applicant for a detective position in a special major crimes group was not selected because a non-minority applicant ‘fit in better’ for that position.
Similarly, a decision in the Fifth Circuit ruled: “[T]he phrasing “better fit” or “fitting in” just might have been about race; and when construing the facts in a light most favorable to the non-moving party, those phrases, even when isolated, could be enough to create a reasonable question of fact for a jury. It is enough of an ambiguity to create a reasonable question of fact.”
These rulings illustrate the importance of choosing words carefully to avoid even the implication of discriminatory practices. If you say that you are hiring for “the best fit”, be prepared to prove that “fit” is determined by an objective assessment of consistent, measurable, job-related criteria.
“Religious accommodation” does not require “direct, explicit notice.”
A recent Supreme Court decision answered the question “Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.” in a case where a young Muslim woman was fired from Abercrombie & Fitch because her head covering, a hijab, did not conform to the company’s “Look Policy”.
The court found that A&F had failed to reasonably accommodate the religious practices of an applicant for employment even though she “never informed Abercrombie prior to its hiring decision that she wore her headscarf or ‘hijab’ for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy.”
The store manager who interviewed the applicant assumed she wore the hijab for religious reasons but did not raise the issue during the interview process.
This just shows that if you are not asking the right questions—the right way—during the hiring process, you may be putting yourself on thin ice with the EEOC.
These cases should be lessons for every company to base hiring decisions on specific, objective job-related skills and experience and to avoid language that suggests discriminatory factors in job postings and interviews.
It is impossible to remain 100% objective when you are hiring for your own business, but you can use impartial third parties to vet candidates for fit based upon predetermined criteria. HRFix specializes in HR that meets or exceeds compliance requirements and we understand the dilemmas you face trying to grow your business while juggling EEOC regulations. A quick call can tell you if you have any red flag areas and our experts can show you a path to achieving compliance in the shortest amount of time with the least hassle. We can help you implement new procedures, improve existing procedures, and keep you up-to-date with any changes in employment laws.
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