Avoid Discrimination in Hiring Practices

Even if you're just trying to even out gender ratios on your staff, this practice can get you into hot water.

Q: My company was recently hiring for a new position. During the hiring process, I discovered that the supervisor in charge of interviewing for the position indicated to others at the company that he was going to give preference to women because his department already had a lot of men. Is this appropriate and/or legal? If not, what are the potential consequences?

A: Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), prohibits discrimination in employment based on certain protected classifications, including race, color, sex, pregnancy, religion, national origin, age (40 or over) and disability. Many states have individual laws that prohibit discrimination in employment as well. Therefore, under Title VII and certain states' laws, employers are prohibited from discriminating on the basis of sex with respect to hiring.

It is noted that while claims pertaining to hiring discrimination typically involve women, men are entitled to Title VII protection as well. This is referred to as "reverse discrimination." When an employer hires women over men, regardless of qualifications, this could be deemed discriminatory.

There are situations, however, in which employers may purposefully seek out qualified candidates of a certain gender or ethnicity to meet a quota or diversify a department as part of an affirmative action program. Affirmative action is required by federal government contractors. In meeting affirmative action obligations, certain government contractors may discover that there is a substantial disparity in the hiring of a particular minority group, or men or women of a particular minority group. In this case, the contractor may be required by federal law to meet certain goals for that minority group with respect to particular job classifications and organizational units. In these circumstances, hiring on the basis of sex may be warranted. Aside from hiring pursuant to a required affirmative action plan, though, hiring decisions on the basis of sex or sex stereotypes are forbidden.

If an individual believes he has been discriminated against with respect to a hiring decision, he must file a complaint with the Equal Employment Opportunity Commission (EEOC)--which is the agency responsible for enforcing Title VII--before he can file a lawsuit alleging that an employer violated Title VII. Once a claim is filed with the EEOC, the agency will begin an investigation. If it decides there is merit to the claim, it will either issue a right to sue letter or file a lawsuit on behalf of the claimant. On the other hand, if the EEOC finds there is not merit to the claim, or if the claimant requests a determination before the investigation is complete, it will also issue a right to sue letter, again authorizing the claimant to file a lawsuit. Either way, if the claimant ultimately prevails in his lawsuit, his remedies may include, among other things, compensatory damages, back wages, reinstatement and possibly punitive damages.

However, any claims filed with the EEOC must be filed by the alleged victim (the prospective employee), rather than a mere observer of the alleged discriminatory practices, as he is the individual entitled to Title VII protection and its remedies. Thus, in your situation, as you are not the individual potentially being discriminated against, you do not have standing to file a charge with the EEOC.

Although you are not the aggrieved party, you do have the right to raise the issue internally and are protected from being retaliated against for doing so. Specifically, anyone who cooperates or brings issues of this sort to the attention of their employer is entitled to protection under Title VII, and may be entitled to protection under comparable states' laws. Thus, you may want to speak with someone at the company regarding the situation. For instance, you could approach a human resources director or someone in management to inform them of your concerns. Or, if you are already in management, you should discuss the situation with the hiring supervisor. Presumably, your company has a policy against discrimination in hiring.

In sum, notwithstanding certain affirmative action obligations that must be met by federal contractors, Title VII prohibits employers from basing hiring decisions on sex alone. And if an employer does engage in these discriminatory practices, it may be exposing itself to liability, as these practices can result in an investigation by the EEOC as well as potentially costly litigation.

Note: The information in this column is provided by the author, not Entrepreneur.com. All answers are general in nature, not legal advice and not warranted or guaranteed. Readers are cautioned not to rely on this information. Because laws change over time and in different jurisdictions, it is imperative that you consult an attorney in your area regarding legal matters and an accountant regarding tax matters.

Larry Rosenfeld is co-chair of the national labor and employment practice of the law firm Greenberg Traurig LLP. A frequent writer and lecturer on employment law topics, Rosenfeld is experienced in the areas of federal laws pertaining to employment issues, EEOC, ADA, termination matters, employment liability and the Fair Labor Standards Act.

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