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Hiring Laws & Protected Classes: A Resource Guide

What you can ask & what you cannot in the hiring process

Jonathan Reisch avatar
Written by Jonathan Reisch
Updated over a year ago

SOP Link: HERE

Process Owner: Sydney Newcomb

Last Updated: April 2024

Hiring Laws and Protected Classes: A Resource Guide

“What you can ask & what you cannot in the hiring process”

This guide provides an overview of federal anti-discrimination laws related to hiring practices and protected classes in the workplace. Understanding these laws is essential for employers to ensure fair and legal hiring decisions.

Unconscious bias can influence our hiring decisions in subtle ways. This guide will help you identify illegal interview questions, but understanding unconscious bias is another important step toward fair hiring. → Watch our Unconscious Bias Training video

If you have any questions, please contact our Human Resources dept or your dedicated recruiter.

Federal Anti-Discrimination Laws

The primary federal laws enforced by the Equal Employment Opportunity Commission (EEOC) that prohibit discrimination in hiring include:

  • Title VII of the Civil Rights Act of 1964: Protects against discrimination based on race, color, religion, sex (including pregnancy), and national origin. The PDA clarifies that pregnancy, childbirth, and related medical conditions are considered sex-based discrimination under Title VII.

  • Age Discrimination in Employment Act (ADEA): Prohibits discrimination against applicants and employees based on age.

  • Americans with Disabilities Act (ADA): Prohibits discrimination against qualified individuals with disabilities.

  • Equal Pay Act of 1963: Requires equal pay for men and women doing substantially equal work in the same establishment.

  • Genetic Information Nondiscrimination Act (GINA): Prohibits employers from discriminating against individuals based on genetic information.

  • National Labor Relations Act (NLRA): This federal law protects employees' rights to form unions and engage in collective bargaining. The National Labor Relations Board (NLRB) enforces the NLRA. Employers cannot have policies that prohibit employees from discussing their wages. Employers cannot threaten, discipline, or fire employees for talking about their salaries. Employers cannot require employees to get permission before discussing wages.

Protected Classes

Federal anti-discrimination laws protect individuals based on the following characteristics:

  • Race

  • Color

  • Religion

  • Sex (including pregnancy)

  • National Origin

  • Age

  • Gender

  • Disability

  • Genetic Information

State Salary Laws: Many states and localities have laws that further restrict what employers can ask about during the hiring process. For example, states like Alabama, California, Colorado, Connecticut, Delaware, the District of Columbia, and others have salary history bans, making it illegal for employers to ask about or consider a candidate's salary history during the hiring process.

Discrimination Scenarios

These are just a few examples of how discrimination can occur during the hiring process based on protected class:

  • Race:

    • Rejecting a qualified candidate of color for a position because they don't "fit" the company culture.

    • Rejecting resumes with ethnic-sounding names for interviews, even if qualified.

  • Color:

    • During an interview, an interviewer comments negatively on a candidate's brightly colored hairstyle for a professional position.

  • Religion:

    • An employer asks a candidate about their religious availability during the interview, implying a preference for those who can work weekends or evenings.

  • Sex (including pregnancy):

    • An interviewer asks a female candidate detailed questions about her childcare arrangements, but not a male candidate applying for the same position.

  • National Origin:

    • An interviewer asks a candidate with a foreign accent if their English is good enough for the position, despite clear communication throughout the interview.

  • Gender:

    • Asking a female candidate about her childcare plans during an interview, but not asking a male candidate.

  • Age:

    • Favoring younger applicants over equally qualified older applicants.

    • An interviewer tells an older candidate that the company culture is "fast-paced and energetic," implying a preference for younger applicants.

  • Disability:

    • Failing to provide reasonable accommodations for an applicant with a disability during the interview process.

    • An interviewer rejects a qualified candidate who uses a screen reader for a writing position, assuming they cannot perform the job without inquiring about alternative methods.

    • During an interview, an employer asks a candidate with a stutter if they think their speech impediment would hinder their ability to communicate with clients.

  • Genetic Information:

    • A job application asks candidates for their family history of certain diseases (illegal under GINA).

  • Salary:

    • Asking the question, “How much money did you make at your previous company?”

    • Instructing the new hire to avoid talking to their coworkers about their salary.

Reasonable Accommodation

The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to qualified individuals with disabilities unless doing so would impose an undue hardship on the employer. Examples of reasonable accommodations may include providing accessible interview materials, modifying interview questions, or adjusting the work environment.

What you can ask:

Do NOT ask the following questions:

It's important to remember that not all inquiries are illegal. You can ask job-related questions to assess an applicant's qualifications, such as:

  • Can you legally work in the United States?

  • Are you available to work the required hours, including weekends or evenings (if applicable)?

  • Do you have the skills and experience listed in the job description?

Citizenship and National Origin:

  • Where were you born? (This can reveal national origin)

  • Are you a U.S. citizen?

  • What is your native language? (Unless directly related to the job)

  • Do you have an accent? (Unless the job requires clear communication)

Age:

  • How old are you?

  • When did you graduate from high school/college? (Can indirectly reveal age)

Disability:

  • Do you have any disabilities?

  • What kind of medical conditions do you have?

Credit History:

  • Can I see your credit report?

  • Have you ever filed for bankruptcy?

Family and Personal Life:

  • Are you married?

  • Do you have children?

  • Who will care for your children if you are hired?

  • Are you planning to become pregnant?

  • What is your spouse's name and occupation?

Religion:

  • What is your religion?

  • Do you attend religious services regularly?

  • Are you available to work on weekends or holidays? (If the purpose is to identify religious observances)

Military Service:

  • Did you serve in the military? (Unless the job requires military experience)

  • What type of discharge did you receive?

Salary:

  • How much money did you make at your last company?

Filing a Discrimination Complaint

Individuals who believe they have been discriminated against in the hiring process can file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).

Disclaimer

This guide is intended for informational purposes only and does not constitute legal advice. For specific legal questions regarding hiring practices, please consult with an employment attorney.

Additional Resources

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