An employer cannot discriminate against a prospective employee based on race, national origin, gender, pregnancy, age, disability or religion at any point during the hiring process.
Employment Law and Employee Litigation Information Center
As an employee, you have the right to protect yourself against an employer that takes illegal actions against you. Whether you have been a victim of sexual harassment, discrimination, wrongful discharge, or you need experienced advocacy regarding a wage and hour claim, our attorneys can help. At Farmer Price Hornsby & Weatherford, LLP, we have extensive experience representing clients throughout the area in employment law disputes. From the initiation of your case, through its final resolution, we will remain mindful of your interests, including your reputation and long-term career objectives.
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The Hiring Process
Applicants for employment positions have rights whether or not they become employees. Under federal law, it is illegal for an employer to discriminate in its hiring process based on race, national origin, gender, pregnancy, age, disability or religion. State and local laws may specify additional protected classes based on categories such as sexual orientation. Employers must abide by anti-discrimination laws at each stage of the hiring process, from placing the ad to interviewing and the final selection of the candidate. There are few exceptions to these rules, but an employer may discriminate on some bases if a bona fide occupational qualification (BFOQ) exists. A BFOQ can be based on a reasonable and necessary job requirement, but this is a narrow exception. If you are concerned about discrimination in hiring, contact Farmer Price Hornsby & Weatherford, LLP in Dothan, Alabama, to discuss your situation.
Employer Interview Questions
Generally, employers should avoid asking questions that relate to the classes protected by discrimination laws. The following examples are the types of queries that are illegal for prospective employers to ask:
- Whether the applicant has children or intends to have children
- Applicant's marital status
- Applicant's race
- Applicant's religion
- Applicant's age (other than inquiring whether over age of 18)
- Whether applicant has a disability
- Applicant's citizenship status
- Questions about whether the applicant has ever had a drug or alcohol problem
An applicant may raise questions related to these areas during a job interview. If so, the employer may discuss these topics to the extent necessary to answer the applicant's questions.
Hiring Process
Whenever an employer seeks to hire a new employee, the employer should take a number of steps before that new employee begins work:
- Obtain the employee's Social Security number or IRS Individual Taxpayer Identification Number (ITIN)
- Have the employee fill out a W-4 form for income tax withholding
- Ensure that Occupational Safety & Health Administration (OSHA) regulations are being followed
- Arrange to pay relevant federal and state unemployment compensation taxes
- Arrange to pay Social Security and Medicare taxes for the employee
- Ensure that workers' compensation insurance covers the new employee
- Ensure that required labor notices are posted in the workplace as required by the Department of Labor (DOL)
- Assist new employee with registration for employee benefits
When an employer hires a new employee, the employer should be careful to avoid making promises to the employee that it may not be able to keep. Such false statements or promises on behalf of the employer may result in breach of contract. An employer should be careful not to exaggerate the security of the job or the prospects of the business. A promise that stock options will be worth a given amount, that the employee has a job for life or that employee will receive significant pay increases may result in an implied contract. If these promises are not kept, the employer may be responsible to the employee for damages the employee incurred in relying on the employer's promise.
Conclusion
An employer must be careful not to discriminate against an applicant on illegal grounds and must use caution in making promises to employees. If you have any questions about these issues, Farmer Price Hornsby & Weatherford, LLP in Dothan, Alabama, can help.
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