Eleanor Finch
Illegal hiring practices are prohibited by law and can result in serious consequences for employers. These practices include discrimination based on race, colour, religion, sex, national origin, age, disability, or genetic information. It is also illegal to retaliate against an applicant for complaining about discrimination or participating in an investigation. Other illegal hiring practices involve kickback schemes, where individuals are offered federal jobs in exchange for payments or political contributions. Additionally, employers must accommodate religious beliefs and practices, unless it causes difficulty or expense, and dress codes must not treat employees differently based on their national origin. California law specifically prohibits discrimination and harassment based on gender identity, gender expression, and sexual orientation.
| Characteristics | Values |
|---|---|
| Recruiting new employees in a way that discriminates against them | Race, color, religion, sex (including transgender status, sexual orientation, and pregnancy), national origin, age (40 or older), disability, or genetic information |
| Dress code | Must not treat employees unfavorably because of their national origin |
| Religious beliefs or practices | Employers must reasonably accommodate them unless it causes difficulty or expense for the employer |
| Training or apprenticeship programs | Cannot discriminate on the basis of race, color, religion, sex, national origin, age (40 or older), disability, or genetic information |
| Political affiliation | Prohibited from influencing employment decisions or practices |
| Federal jobs | Cannot offer or threaten to induce payments, political activities, or contributions |
| Influencing a person to withdraw from competition | With the intent to improve or injure someone's employment prospects |
| Providing true information about the position | Done with the intent to improve or injure someone's employment prospects |
| Harassment | Based on gender identity, gender expression, and sexual orientation |
| Hiring practices | Asking a candidate whether or not he attends church |
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What You'll Learn
- Discrimination based on race, colour, religion, sex, national origin, age, disability, or genetic information
- Discrimination based on gender identity, gender expression, and sexual orientation
- Discrimination based on pregnancy
- Offering federal jobs in exchange for payments, political activities, or contributions
- Influencing employment decisions based on partisan political affiliation
Discrimination based on race, colour, religion, sex, national origin, age, disability, or genetic information
For example, it is illegal for an employer to refuse to give job applications to people of a certain race, or to base hiring decisions on stereotypes and assumptions about any of the aforementioned characteristics. An employer's reliance on word-of-mouth recruitment by an existing workforce of a particular race or ethnicity may also violate the law if it results in a homogenous group of new hires.
Additionally, employers may not take into account any of these characteristics when making decisions about discipline or discharge. For instance, if two employees commit a similar offence, they may not be disciplined differently because of their race, colour, religion, sex, national origin, age, disability, or genetic information. Similarly, when deciding which employees will be laid off, an employer may not choose the oldest workers because of their age.
Employers are also required to reasonably accommodate an employee's religious beliefs or practices, unless doing so causes difficulty or expense for the employer. This could mean allowing an employee to voluntarily swap shifts with a co-worker so that they can attend religious services.
Furthermore, it is illegal for a training or apprenticeship program to discriminate based on these characteristics. For example, an employer may not deny training opportunities to African-American employees because of their race.
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Discrimination based on gender identity, gender expression, and sexual orientation
In the United States, the Equal Employment Opportunity Commission (EEOC) enforces laws that prohibit discrimination based on gender identity and sexual orientation. Title VII of the Civil Rights Act of 1964, which is enforced by the EEOC, makes it unlawful for an employer to discriminate against any individual "because of such individual's race, color, religion, sex, or national origin." While the original text of Title VII did not explicitly mention gender identity or sexual orientation, the Supreme Court clarified in a landmark ruling in 2020 that the prohibition against sex-based discrimination includes discrimination based on sexual orientation and gender identity.
The Supreme Court's ruling in 2020 resolved a Circuit split by holding that it is impossible to discriminate against someone for being homosexual or transgender without also discriminating against them based on sex. This ruling extended workplace discrimination protections to approximately 11 million Americans who identify as LGBT.
In addition to federal law, some states have their own laws prohibiting discrimination based on gender identity and sexual orientation. For example, New York's Human Rights Law, passed in 1945, was the first civil rights law in the country and prohibits discrimination in employment, housing, credit, and other areas. In 2019, this law was amended to include gender identity or expression as a protected category.
It is important to note that discrimination can manifest in various ways, including not being hired, being given a lower-paying position, being paid less than peers, or being denied promotions, pay raises, or training opportunities. It can also take the form of negative performance evaluations that critique employees for not conforming to gender stereotypes.
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Discrimination based on pregnancy
Discrimination against an employee or job applicant based on pregnancy, childbirth, or related medical conditions is illegal. This is specified in Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, which prohibits sex discrimination, including pregnancy discrimination. The Pregnant Workers Fairness Act (PWFA) also requires employers to provide reasonable accommodations to employees or applicants with known limitations related to pregnancy, unless it causes the employer undue hardship.
The PWFA prohibits employers from failing to make these reasonable accommodations, requiring employees to accept alternative accommodations, denying opportunities to qualified employees or applicants due to their need for reasonable accommodation, or requiring employees to take leave if another reasonable accommodation can be provided. Additionally, employers cannot punish or retaliate against employees or applicants for requesting or using reasonable accommodations under the PWFA or for reporting or opposing unlawful discrimination.
The Americans with Disabilities Act (ADA) also prohibits discrimination against an applicant or employee based on a disability, including disabilities related to pregnancy. Employees with pregnancy-related disabilities must be treated the same as other temporarily disabled employees in terms of seniority, vacation calculation, pay increases, and temporary disability benefits. If an employee is temporarily unable to perform their job due to pregnancy, the employer must offer the same accommodations as they would to any other temporarily disabled employee, such as modified tasks, alternative assignments, disability leave, or leave without pay.
Health insurance provided by an employer must also cover expenses for pregnancy-related conditions on the same basis as other medical conditions. Pregnancy-related expenses should be reimbursed in the same way as other medical costs, and insurance providers cannot impose additional or larger deductibles for pregnancy-related claims.
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Offering federal jobs in exchange for payments, political activities, or contributions
This also applies to candidates, who may not promise appointment or use their influence to obtain any public or private employment in exchange for political support. Federal employees are also prohibited from engaging in political activities while on duty, in a federal room or building, while wearing a uniform or official insignia, or using any federally-owned or leased vehicles. This includes expressing opinions about candidates and issues, using their official authority to interfere with election results, inviting subordinates to political events, and soliciting or accepting donations for a partisan political party.
Additionally, it is illegal for an employer to recruit new employees in a way that discriminates against them based on race, colour, religion, sex, national origin, age, disability, or genetic information. This includes an employer's reliance on word-of-mouth recruitment, which may result in a homogeneous group of new hires. It is also illegal for an employer to provide information to an applicant with the intention of dissuading them from continuing with their application so that another candidate may be hired.
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Influencing employment decisions based on partisan political affiliation
In the United States, political discrimination in employment decisions is not explicitly illegal under federal law. While the Civil Rights Act of 1964 prohibits employers from making decisions based on race, colour, national origin, religion, gender, sexual orientation, or gender identity, it does not cover political affiliation or beliefs. This means that employers are generally free to consider political views when making hiring, firing, or promotional decisions.
However, a growing number of states, including California, New York, and the District of Columbia, have enacted laws that explicitly prohibit employers from making employment decisions based on an individual's political affiliations or activities. These laws protect employees and applicants from discrimination based on their political beliefs and ensure that they cannot be penalized for refusing to participate in political or religious meetings organised by their employer.
In Brazil, it is illegal to discriminate in hiring based on political affiliation. However, until recently, Brazil made information about individual political affiliations public and easily accessible, which may have influenced hiring decisions.
The House of Representatives in the US has also taken steps to address this issue. The House amended the Code of Official Conduct to prohibit Members, Delegates, or Resident Commissioners from influencing employment decisions or practices of private entities based on partisan political affiliation. Additionally, criminal provisions in the United States Code prohibit offering federal jobs in exchange for political support or contributions.
Despite these efforts, research suggests that political discrimination in hiring persists. Small and medium-sized business owners are more likely to hire candidates who share their political beliefs, and employees who do not align politically with their bosses may face lower pay, fewer promotions, and shorter tenures. This indicates that political discrimination can significantly impact an individual's career prospects and highlights the need for further legal protections.
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Frequently asked questions
Yes. It is illegal for an employer to discriminate against a job applicant based on these characteristics.
Yes, the law requires an employer to reasonably accommodate an employee's religious beliefs or practices, unless doing so causes difficulty or expense for the employer.
Yes, it is illegal for an employer to terminate, punish, refuse to hire, harass, or discriminate against an employee for taking leave for a pregnancy-related condition.
Yes. It is illegal for an employer to recruit new employees in a way that discriminates against them based on their sexual orientation.
Yes, the Department of Justice has prosecuted Members of Congress and congressional aides involved in kickback schemes under general fraud statutes.
