How to Identify Employment Discrimination In the Hiring Practice

State and federal laws in California promise job applicants and employees protections against discrimination based on specific characteristics. Under California’s Fair Employment and Housing Act (FEHA), an employer cannot base hiring decisions on inherent characteristics or rule out groups of people based on their protected characteristics. Doing so leaves the employer liable for damages in an employment discrimination lawsuit.

Sometimes, a job applicant suspects discrimination during the hiring practice of a position they’ve applied for or an employee suspects their employer of discrimination in their hiring practices, but how do they know for certain? How do you identify an employer’s discrimination in their hiring practices?

Did the Employer Ask Questions About Inherent Characteristics During the Hiring Process?

Under FEHA in California, a prospective employer with five or more employees falls under the law’s anti-discrimination regulations. Signs of discriminatory hiring practices include questioning the applicant about any of the characteristics below:

• Race
• Nationality
• Country of origin
• Religion
• Native language
• Ancestry 
• Age
• Gender preference, sexual orientation, or gender identity
• Disability
• Medical condition
• Marital status
• Pregnancy

If an employer in California asks an applicant about any of the protected characteristics listed above, it’s an unlawful practice in California. After hiring, an employer may only ask about any of the above if it directly relates to their ability to complete tasks or the employer’s attempt to add accommodations, such as for an employee’s disability.

It’s important to be aware of subtle ways an employer might attempt to get around the anti-discrimination laws during hiring. For instance, if they ask questions like, “What kind of accent do you have?” or “Where were you born?” they may be trying to discern race or nationality. Questions like, “What year did you graduate?” can be a question used to determine an applicant’s age.

Asking an applicant for a photograph before agreeing to an interview can also be a sign of discriminatory hiring practices.

Identifying Disparate Impact In the Hiring Practice

In many cases, an employer’s discriminatory hiring practices are more subtle than asking questions outright, such as “Are you transgender?” Instead, they may use hiring practices that have a disparate impact on a specific group. For example, having a hiring standard that requires only hiring people who are over 5’10” or more when height isn’t relevant to the job position has a disparate impact on women who are more likely to be shorter. Disparate impact in hiring causes disadvantage to one group of people in a way that’s not relevant to the job requirements. If an employer’s hiring practice results in hiring members of a protected group at less than 80% of the non-protected group.

Discrimination In Advertising for Job Positions

Discriminatory hiring practices may also occur in job advertisements. For example, if a job listing states that an employer is hiring “mature” applicants, “new graduates,” or “fresh applicants who can connect with the younger generation,” it could be coded language for age discrimination unless the requirement is necessary to complete the job’s required tasks.

What If I Suspect Discrimination in an Employer’s Hiring Practice?

If a job applicant feels they are the victim of illegal discrimination in an employer’s hiring practices, a workplace discrimination lawyer in San Diego can assess the situation and they can seek compensation through a discrimination lawsuit. Employers are not allowed to discriminate in their hiring practices just as the law prohibits discrimination against hired employees already in the workplace.