Job applicants have legal protections and rights even before they become employees. Federal law prohibits employers from engaging in discriminatory hiring practices in all stages of the recruitment process, including job advertisements, screening and interviewing, pre-employment assessments, and selection of the final candidate. Protected classes outlined in federal law include race, color, national origin, gender, pregnancy, age, disability, and religion. State and local laws may specify additional protected classes based on factors such as the sexual orientation of a job applicant. However, an employer may discriminate in some cases if a “bona fide occupational qualification” (BFOQ) exists even when the trait in question is a valid and necessary job requirement. To be eligible for a BFOQ, employers should seek legal advice before implementing the qualification (Find Law, n.d.). Below are federal laws and regulations that are vital for an HR professional to understand throughout the recruitment, selection, and hiring process.
Major Laws and Regulations the Affect the Selection Process
Title VII of the Civil Rights Act of 1964
Enforced by the Equal Employment Opportunity Commission (EEOC), the most well-known regulation, Title VII of the Civil Rights Act, prohibits discrimination in employment practices based on race, color, religion, sex, and national origin. In 1991, The Civil Rights Act of 1991 was enacted to strengthen and improve Federal civil rights laws and allow for compensatory and punitive damages in cases of intentional discrimination, among other things.
Age Discrimination in Employment Act of 1967 (ADEA)
The Age Discrimination in Employment Act protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions, or privilege of employment based on the individual’s age. The Act also promotes hiring decisions based on abilities rather than age. The ADEA covers all private and public employers with 20 or more employees, unions with 25 or more members, employment agencies, apprenticeships, and training programs.
Americans with Disabilities Act (ADA) of 1990
The Americans with Disabilities Act is a comprehensive act that prohibits discrimination on the basis of disability. It is designed to protect individuals with disabilities and includes three areas of legislation: Employment (Title I), State & Local Government (Title II), and Public Accommodations and Commercial Facilities (Title III).
Title III, Public Accommodations and Commercial Facilities, prohibits discrimination on the basis of disability in the activities of places of public accommodations (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, daycare facilities, recreation facilities, and doctors’ offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)—to comply with the ADA Standards (United States Department of Justice Civil Rights Division, n.d.).
Title II, State, and Local Government protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by state and local government entities.
Title I, Employment, prohibits private employers, state and local governments, employment agencies and labor unions with 15 or more employees from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment (United States Department of Justice Civil Rights Division, n.d.). Employers must consider all qualified individuals for employment when he or she is capable of performing the “essential functions” of the job either unaided or with “reasonable accommodation.” While employers may ask disability-related questions and require medical examinations, this may only be conducted following a conditional job offer. According to the EEOC, while employers may not ask disability-related questions or require a medical evaluation pre-offer, they can evaluate the individual to determine if they are qualified for the position. Examples include:
- Employers may ask about an applicant’s ability to perform specific job functions. For example, an employer may state the physical requirements of a job (such as the ability to lift a certain amount of weight, or the ability to climb ladders), and ask if an applicant can satisfy these requirements.
- Employers may ask about an applicant’s non-medical qualifications and skills, such as the applicant’s education, work history, and required certifications and licenses.
- Employers may ask applicants to describe or demonstrate how they would perform job tasks (The U.S. Equal Employment Opportunity Commission, 1995).
Disablity was initially defined by the ADA as a physical and mental impairment that substantially limits one or more major life activities. Examples of major life activities include (but are not limited to): transferring/mobility, toileting/ personal hygiene, bathing and dressing.
Expanded by the ADA Amendments Act (2008), the definition of disability includes a non-exhaustive list of major life activities that include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.