Federal and state laws provide protection against workplace discrimination for both current and prospective employees. Failure to hire is a type of discrimination that occurs during the hiring process when someone does not receive a job offer because they belong to a protected class. The Federal Equal Opportunity Commission enforces the various federal laws establishing protected classes, which include age older than 40, nationality, pregnancy status, sex, gender identity, religion, disability, genetic information, race or skin color.
California companies must also abide by the Fair Employment and Housing Act, which adds gender expression, sexual orientation, medical condition, and military or veteran status to the protected classes. The state has a broader definition of physical and mental disability than that used in federal law. It also covers workers at companies with five or more employees, while federal protection is limited to those who work at businesses with at least 15 employees.
Understanding Failure To Hire Claims
Hiring discrimination occurs anytime an employer decides not to hire someone based on stereotypes of a protected class. Common examples of this type of conduct include:
- Asking about a candidate’s pregnancy status or other protected characteristics during an interview
- Posting a job ad that mentions a gender or age preference (“recent college grads,” for example)
- Declining to provide reasonable interview accommodations for a candidate who has a disability
To successfully pursue a failure to hire claim, you must prove that:
- You are a member of a protected class
- You met the job’s minimum requirements and successfully submitted an application
- You did not receive a job offer
- The company hired someone outside your protected class or did not fill the job at all
In one famous example, the Supreme Court found in 2015 that clothing retailer Abercrombie & Fitch violated federal civil rights laws when it declined to hire an applicant because she wore a hijab. The company’s actions discriminated against the plaintiff because of her Muslim religion. In another California case, a Black employee at Pier 1 Imports was denied an assistant manager position based on his race.
Signs of Failure To Hire Discrimination
You might suspect you have been a victim of hiring discrimination if:
- The interviewer declines to provide feedback about your application or interview.
- You asked questions about the role and received only vague or generic answers.
- Your interviewer asked about your membership in a protected class.
Begin gathering evidence to support your case immediately if you feel you were a victim of hiring discrimination. You should also contact an attorney who specializes in employment law. A professional can help you determine whether you have a failure to hire case and provide detailed advice about your next steps.
You have one year from the date that discrimination occurred to file a formal complaint in California. Before you can file a lawsuit, you must pursue the remedy recommended by the Equal Employment Opportunity Commission, which may include mediation with the employer or EEOC investigation. Depending on the results, the agency may give you and your attorney permission to file a federal lawsuit.
Sources:
