Employment Law: Recruiting Activities And Equal Rights

Equal employment laws are designed to ensure that all candidates have equal access to employment opportunities. These laws apply to all stages of the employment lifecycle, including recruitment and hiring. In the US, the Equal Employment Opportunity Commission (EEOC) enforces federal employment discrimination laws. Under the EEOC, it is illegal for employers to discriminate against someone based on their race, colour, religion, sex, national origin, age, disability or genetic information. This applies to both the recruitment process and the treatment of employees.

To ensure compliance with equal employment laws, employers should understand the specific laws that apply to their business and review their hiring processes to identify and address any policies that may result in adverse impact.

Criminal history checks

In the US, employers must get written permission from applicants to run a background check from a background reporting company. Applicants have the right to refuse, but this may negatively impact their job application.

In some states, such as California, there are "Ban the Box" laws that prohibit employers from asking about an applicant's criminal history before making a job offer. However, there are certain roles that require criminal background checks by law, such as working with children or vulnerable adults.

In general, employers should avoid using an employment policy that excludes people with certain criminal records if that policy significantly disadvantages individuals of a particular race or national origin and does not accurately predict who will be a responsible, reliable, or safe employee.

If an employer asks for criminal history information, it is recommended to wait until later in the hiring process. This allows them to consider applicants' qualifications first before assessing the relevance of their criminal history. However, in some cases, criminal history information may be required early in the hiring process to comply with certain laws or regulations.

When considering an applicant's criminal history, employers should determine how it relates to the risks and responsibilities of the job. This includes considering the nature and seriousness of the crime, the time that has passed since the offense, and the nature of the job.

Arrest records should be treated differently from conviction records. An arrest does not prove that a crime was committed and may be inaccurate or incomplete. However, it can trigger an inquiry into the underlying conduct.

Conviction records, on the other hand, are usually proof of criminal activity but may sometimes be deemed inaccurate or outdated. Applicants should be given an opportunity to explain their criminal history and respond to any concerns.

In Australia, employers should only ask about criminal records if there is a connection between the inherent requirements of the job and a criminal record. They should create an environment that encourages an open and honest exchange of information.

If there is a legal requirement for an employee or applicant not to have a certain criminal record, employers may be obliged to ask for criminal record details. However, employers are required to obtain consent for a police check.

It is important to note that privacy laws specify that personal information should only be collected to the extent necessary for a purpose directly related to the function or activity of the collector. Collecting an individual's entire criminal record may be considered excessive for employment purposes.

When requesting criminal record information, employers should only ask relevant questions and put processes in place to respect the applicant's privacy. This encourages a free exchange of information.

In summary, when considering criminal history checks during the recruiting process, employers should be mindful of equal employment laws and treat applicants consistently. They should assess the relevance of criminal records to the job, provide opportunities for applicants to explain their history, and follow applicable laws and regulations regarding the collection and use of criminal record information.

Pay history checks

In the US, the Equal Employment Opportunity Commission (EEOC) is a federal agency tasked with enforcing federal employment discrimination laws. Under the laws enforced by the EEOC, it is illegal for employers to discriminate against applicants or employees based on race, colour, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability, or genetic information. This applies to every aspect of employment, including recruitment.

To address this inequality, several states and municipalities have enacted bans on asking for previous salary information, although laws vary in terms, scope, and applicability. As of September 2022, more than a dozen states have passed this type of law, including California, New York, New Jersey, Illinois, and Washington. Some cities, such as New York City and San Francisco, have also passed similar laws.

In states with salary history bans, employers are prohibited from asking applicants about their current or past salaries, benefits, or other compensation. This means that employers cannot ask about salary on job applications, in written materials, or during interviews. However, in some states, employers are allowed to seek salary history information after making a conditional offer of employment with a specified salary. If an applicant voluntarily discloses their salary history, employers are typically free to use that information when setting pay.

In states without salary history bans, employers are generally allowed to ask about an applicant's current or prior salaries. However, they may still be subject to other equal employment laws that prohibit discrimination in hiring practices.

To comply with pay history ban laws, employers must refrain from asking about an applicant's wage history during the interview process. They should also avoid relying on past wages when making salary offers to new employees, as some applicants will volunteer this information without being asked. Complying with these laws helps create a more level playing field for all workers and ensures that everyone has a fair chance at earning a living wage.

Immigration status

In the United States, the Immigration and Nationality Act (INA) prohibits employers from discriminating against U.S. citizens, U.S. nationals, and authorized aliens on the basis of national origin or citizenship status during hiring, discharge, or recruitment/referral for a fee. The law also prohibits discrimination against U.S. citizens, U.S. nationals, permanent residents, temporary residents, refugees, and asylees on the basis of citizenship status.

The Equal Employment Opportunity Commission (EEOC) enforces laws prohibiting employment discrimination and harassment based on race, colour, sex, religion, national origin, age (40 and over), and physical or mental disability. This includes discrimination during recruitment. The EEOC investigates national origin claims against employers with 15 or more employees, and all workers are protected under the law.

The Immigrant and Employee Rights Section (IER) of the U.S. Department of Justice's Civil Rights Division enforces a part of the INA that prohibits employment discrimination based on citizenship status and national origin with respect to hiring, firing, and recruiting or referring for a fee. The IER investigates national origin claims against employers with four to 14 employees, and all work-authorized individuals are protected under this part of the law.

In general, an employer with four or more employees may not discriminate against someone because of their citizenship or immigration status. U.S. citizens, U.S. nationals, asylees, refugees, and recent lawful permanent residents are protected from citizenship status discrimination in hiring, firing, and recruitment or referral for a fee.

Employers should treat U.S. citizens, non-U.S. citizen nationals, lawful permanent residents, and workers granted asylum or refugee status consistently in recruitment or hiring, without regard to their citizenship status, except where required by law, regulation, executive order, or government contract. Employers should also refrain from creating unnecessary hurdles for work-authorized individuals who may not have received a Social Security number yet.

It is also important to note that most employers should not ask whether or not a job applicant is a U.S. citizen before making an offer of employment. The INA requires employers to verify the identity and employment eligibility of all employees hired after November 6, 1986, by completing the Employment Eligibility Verification (I-9) Form. Federal law prohibits employers from rejecting valid documents or insisting on additional documents beyond what is required for the Form I-9 or E-Verify processes, based on an employee's citizenship status or national origin.

Disability accommodations

The Americans with Disabilities Act (ADA) of 1990 makes it unlawful to discriminate in employment against a qualified individual with a disability. The ADA also outlaws discrimination against individuals with disabilities in state and local government services, public accommodations, transportation, and telecommunications.

The ADA defines an individual with a disability as someone who:

• Has a physical or mental impairment that substantially limits a major life activity
• Has a record or history of a substantially limiting impairment
• Is regarded or perceived by an employer as having a substantially limiting impairment

An applicant with a disability must be able to meet the employer's requirements for the job, such as education, training, employment experience, skills, or licenses. They must also be able to perform the "essential functions" of the job, either on their own or with the help of "reasonable accommodation."

Reasonable accommodation refers to any change or adjustment to a job or work environment that allows a qualified applicant or employee with a disability to participate in the job application process, perform the essential functions of a job, or enjoy the benefits and privileges of employment equal to those without disabilities. Examples of reasonable accommodations include:

• Providing or modifying equipment or devices
• Part-time or modified work schedules
• Reassignment to a vacant position
• Adjusting or modifying examinations, training materials, or policies
• Providing readers and interpreters
• Making the workplace readily accessible

Employers are required to provide reasonable accommodation unless doing so would cause "undue hardship," meaning significant difficulty or expense.

Age discrimination

When outlining experience requirements, it is advisable to describe the type and depth of experience needed rather than a simple number of years, as this could exclude younger applicants in their 20s. Similarly, qualifications should be limited to those necessary for the role. For example, a cleaning position may not require a graduate degree, and such a qualification could discriminate against older workers.

Any age limit, whether maximum or minimum, is direct age discrimination unless it can be objectively justified. For example, in Gorka Salaberria Sorondo v Academia Vasca de Policia y Emergencias, the ECJ held that an age limit of 35 years for new police recruits was direct age discrimination but was justified due to the operational demands of the role. However, such justifications require clear and compelling evidence, which may not always be available.

Frequently asked questions