A small lawn and garden center requires women applying for positions to pass a lifting test. A loan repayment call center gives a written and oral pre-employment examination to all Hispanic or foreign-born applicants. A restaurant requires black applicants to undergo drug testing but doesn’t ask white applicants to do so. Can you spot the problems with these scenarios? All are examples of disparate discrimination in hiring – and can lead to legal problems.

Disparate treatment– or behaving differently with certain job candidates – can leave you open to disparate discrimination claims or lawsuits – especially if the applicant is a member of a protected class. Although most employment laws apply to employers with more than 15 employees, smaller businesses are not exempt from compliance.

Take the recent example of a New Jersey woman who was unexpectedly fired by text when she requested maternity leave. Her story went viral on social media and was reported by CBS News. The store manager committed at least two illegal moves: telling an employee she’s being fired for requesting maternity leave — and admitting she never would have been hired if she had told him she was pregnant. The manager was forced to resign, the business was publicly shamed, and a lawsuit may be forthcoming.

No matter the size of your business, a job candidate can sue or file a complaint on grounds of disparate discrimination. With fair employment practices in place, however, you can safeguard your business and reputation.

Disparate treatment discrimination arises when an employee or job candidate claims to have been treated differently than others based on a protected characteristic, such as gender, race, age, religion, skin color, disability or national origin.

What Are Protected Classes?

People with certain characteristics are considered part of a group, or class, protected from employment discrimination by various state and federal laws. Many of these laws were originally enacted as part of the Civil Rights Act of 1964 or other Equal Employment Opportunity (EEO) legislation meant to correct patterns of unequal treatment of women and minorities. Today, this has expended to include protections for other groups, as well.

Federal (and many state or local) laws provide protection from discrimination based on the following characteristics:

  • Sex/Gender – either male or female (transgender protection in some states). Discrimination on the basis of pregnancy, childbirth or related medical conditions is also illegal.
  • Race – a grouping of people by geographic origin or common genetic characteristics (such as skin color, hair texture and certain facial features). All people may claim genealogy of one more or races and are therefore protected.
  • Color – refers specifically to complexion or shade of a person’s skin.
  • Religion – covers members of organized religions and people who observe specific practices or beliefs.
  • Age – specifically, a person 40 years or older.
  • Disability – anyone with a physical or mental impairment that substantially limits one or more major life activities, or with a history of such impairments.
  • National origin/ancestry – refers to ancestral beginnings, or the physical, cultural or linguistic characteristics of a particular national group.
  • Genetic Information – (added in 2008) covers DNA testing for law enforcement, family or personal medical history, and genetic ancestry tests. (It’s unlawful to discriminate in hiring based on genetic information or to disclose genetic information about applicants, employees or members).
  • Veteran status – (added in 2015) this covers veterans of past wars, disabled veterans, those recently deployed, and those serving in reserve positions with active service commitments (in addition, employers may be required to hold a service member’s position while deployed).

Plus, many states have additional protected classes, which may include:

  • Gender identity
  • Sexual orientation
  • Political ideology
  • Creed, or system of belief/ethics
  • Serving in state militia

The Supreme Court has laid out a four-part test that determines whether disparate treatment discrimination occurred. All four of the following elements must be proven for a company to be found guilty of disparate discrimination:

  • Candidate or employee is a member of a protected class (for example, Asian, Muslim, female, over age 40, etc.)
  • Candidate or employee was qualified for the job (or promotion or benefit)
  • Candidate or employee was denied the job (or benefit)
  • The job or benefit remains open or was given to someone else not in a protected class (For example, if a Latino woman was denied the position and the job was given to a white male with the same qualifications.)

Dos and Don’ts of Hiring to Avoid Disparate Discrimination

Disparate treatment isn’t always the result of obvious discrimination. Sometimes unintentional discrimination in hiring can occur from actions or even attempts to remedy uneven racial distribution of employees. For example, a white teacher in Texas sued over extra vacation time given to Hispanic teachers. It was meant as a hiring incentive to improve diversity but resulted in disparate treatment. In another case, a beauty supply store settled a discrimination case after hiring a black worker and then rescinded the offer because the district manager “didn’t want another black person working in the store.”

It’s important to understand what sort of hiring practices may be seen as discriminatory or lead to unintentional disparate treatment. At the same time, your recruitment and selection practices should support the most diverse and qualified applicant pool possible. When it comes to affirmative action, the key is to eliminate preferences and favoritism — and to cast a wide net to provide ample opportunity for all.

DO: Clearly define job responsibilities

Carefully consider the exact duties that the job requires. Write a job description that includes a specific outline of each task, and how often it must be performed. The more accurate you are in your job description, the more likely you may be to get job applicants that fit your needs. Be mindful that rejecting applicants who meet the stated criteria in favor of those who don’t can cause problems.

For example, a Mississippi U-Haul company paid $140,000 to settle a discrimination case when they passed over a black employee (of 10 years) for a position as marketing president in favor of an executive’s son who didn’t meet the qualifications. The employee had management experience and a college degree (the son didn’t), but the company re-wrote the job description after-the-fact to fit the son’s qualifications.

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, religion and national origin.

DON’T: Require specific physical traits or genders

Rather than stating specific physical characteristics for a job, such as saying, “male weighing over 170 pounds,” (which is discriminatory) state the requirements of the job, such as “must be able to repeatedly lift 50 boxes on/off a truck”. If a job has a gender requirement, carefully consider whether someone of the opposite gender could fulfill the role with modifications. For example, if a boys’ basketball coaching position requires entering a locker room, consider whether privacy areas can be added for changing or if the job description can be changed to avoid that particular task.

Keep in Mind:

Gender discrimination goes both ways. Ventura Corporation, a wholesaler of beauty products, was sued by the U.S. Equal Employment Opportunity Commission (EEOC) for discrimination by not hiring men as sales reps, and paid a $345,250 settlement.

DO: List specific job skills

If a job requires a specific skill or certification, such as fluency of a language, computer software application or CPR, state that in the job description. Be clear about whether the skill must be available on the first day, or whether it can be learned on the job.

DON’T: Go overboard with requirements

Provide an accurate description of what level of experience or education is needed to succeed in the job. For example, don’t require a college degree for a receptionist position, or an MBA for an assistant-level marketing position if that level of education isn’t essential or common for the type of job you’re offering (you might check what other companies require for similar positions). Such requirements could be seen as discriminatory against certain protected classes. Disparate impact happens when discrimination is not overt, but a policy or action impacts a protected group more than others.

DO: Ask everyone the same interview questions

Develop a list of questions based on the job description and skills needed and be consistent in asking them. You can ask different follow-up questions depending on a candidate’s response but be careful to keep your follow-up discussions relevant to the job and not personal. It’s OK to ask about past work experience, on-the-job situations, and questions that assess a candidate’s interpersonal skills or self-motivation. Make sure all candidates have an equal opportunity to explain why they would be a good fit for the job.

DON’T: Ask Illegal questions

Avoid asking questions related to race, color, ethnicity, gender, religion, age, marital status, military discharge status, national origin, arrest record, pregnancy, disability or genetics. Remember, it’s illegal to discriminate based on these factors, so asking people about where they are from, or if they are married or have children, enters dangerous territory.

The statute of limitations to file a complaint of discrimination is 180 days from the date of the incident but can be extended to 300 days in some circumstances. Lawyers recommend you keep hiring records for one year or more, just in case a complaint is filed.

DO: Be careful when taking notes

Taking notes about candidates can be useful during the selection process, but you must be careful to avoid comments related to protected statuses. Using a more uniform evaluation method (such as a scoring scale) can help you evaluate candidates fairly without risking making disparate discrimination comments. The Applicant Tracking Smart App ensures all interviewers use the same criteria for evaluation, while avoiding writing any legally risky comments.

The key to avoiding disparate discrimination is to treat all candidates equally. If you ask something of one candidate, make sure you ask the same of the others. Don’t require pre-employment testing, proof of certifications or examples of experience from one candidate without asking it from all. Steer clear of discussions about sticky issues (such as race, religion, political beliefs and childbirth). If a candidate ventures into a discussion along these lines, be sure you state your fair hiring position (you don’t make a decision based on such factors) and make a note of your response.

Rely on the Applicant Tracking Smart App

To keep your hiring practices fully compliant, and to avoid disparate treatment of applicants, use the Applicant Tracking Smart App. You can screen and evaluate candidates through each stage of the hiring process — from interview to background check to offer all with the assurance that you’re following a compliant process backed by a team of legal experts.