L03 Protected Classes

Some applicants share a lot of information during applications and interviews, such as mentioning that they are pregnant, have a bad back, are planning to start a family, are married or in the process of a divorce. Employers must ignore the TMI (too much information) factor in making decisions about hiring. Where they must be proactive is being vigilant about preemployment inquiries concerning protected class characteristics. These things to keep in mind include:
 

• Do not ask about protected class characteristics. Examples include gender, age, race, place of birth, if someone is pregnant or planning to start or add to their family, or disabilities. Inquiries about age can include minimums if necessary to hold the position, as in the case of a bartender. Direct inquiries about citizenship should not be part of an application process. Rather, is the applicant eligible to work in the U.S?

• Do not indirectly inquire about protected class characteristics. Examples include dates of graduation from high school, memberships in organizations or whether someone has filed a worker’s comp claim. A question about graduation from high school is appropriate based on yes or no. Questions about professional and work-related organizations are permissible. Not so nosiness about all affiliations and memberships.

• Requirements, criteria and qualifications should be uniform for all applicants for a position. Examples that do not satisfy that standard include inquiries about marital status or child-care arrangements. Application of different standards based on protected status is disparate treatment or outright discrimination.
• Avoid questions about requirements that have a high probability of disparate impact, which is a disproportionate limitation or denial of an employment opportunity based on a “neutral” requirement or criteria that cannot be justified. An example would be a height requirement of 5’8” for a position. It is “neutral” as it applies to every candidate. It disparately impacts women and members of some ethnic groups. Thus, the employer would be required to provide a business justification for the standard. Inquiries about the nature of a military discharge or arrests are ill-advised. Members of some protected classes experience higher rates of encounters with police and arrests. Questions about convictions are appropriate, though the information must be considered in terms of how long it ago it occurred, the seriousness of the crime and its relatedness to the position.

What can result from inquiries that appear to target protected classes is that it has the potential to make an unsuccessful candidate suspicious of the employer’s motives and can provide direct or circumstantial evidence in support of a finding of discrimination.