How to Identify Employment Discrimination in the Hiring Process

Employment discrimination lawyers in San Francisco discuss red flags that might be evidence of unlawful hiring discrimination

Employers are not permitted to consider certain characteristics about job applicants when deciding whether to hire them. An employer violates federal or California law by basing a decision not to hire an applicant on those characteristics regardless of the employee’s qualifications. As employment discrimination lawyers in San Francisco, we understand that discrimination in hiring is not always easy to identify. Here are some indications to help job applicants identify employment discrimination during the hiring process.

Questions About Nationality or Race

Race, nationality and ancestry are not characteristics that employers may consider in hiring. Certain questions during a job interview are red flags that may indicate an intent to discriminate against job applicants because of those characteristics.

Most employers avoid asking such questions as “What is your race?” or “What is your nationality?” but they may ask questions that elicit that information indirectly. Job applicants should be wary of any of these questions:

• Where were you born?
• Where are your parents from?
• What is your background?

An employer may ask if a job applicant is eligible to work in the United States. Asking about nationality or citizenship, however, may be an indication of an intent to discriminate against lawful residents who have been granted work privileges.

• Did you grow up speaking English?
• What kind of accent is that?

Asking about English language skills may be appropriate, but only if (1) the job requires a particular degree of fluency (such as a customer service position) and (2) the interviewer asks all job applicants the same question. Directing those questions only to interviewees who speak with an accent may signal an intent to discriminate against foreign-born applicants.

• Do you belong to any organizations?

While it is fair to ask about memberships in work-related organizations, questions about memberships in social or political groups may be designed to elicit the applicant’s ethnicity or national orgin. An employment discrimination lawyer in San Francisco might view those questions as potential evidence of discrimination if an applicant who was not hired answered the question in a way that provided information about the applicant’s race, ethnic heritage, or nationality.

Questions About Disability

“Are you disabled?” is a prohibited question. Employers may describe job duties and ask whether the employee is capable of performing those duties, either with or without an accommodation. The employer may also ask the applicant how the applicant would perform the job, but comments like “I don’t think you’d be able to handle the work” might signal a prejudice against disabled applicants.

Applicants are entitled to volunteer information about a disability and to ask about accommodations. For example, an employee in a wheelchair might require a clear path to the work area or might need to have a desk positioned to make it accessible. If the request is reasonable and an employer says “I don’t think we’d be able to do that” without exploring alternative accommodations, then a San Francisco employment attorney might view that conduct as evidence of discrimination if the disabled applicant is not hired.

Questions About Age

It is unlawful to discriminate against employees or job applicants who are 40 years of age or order. “How old are you?” suggests that the employer considers age to be a relative factor in the hiring decision. Less obvious signs of a discriminatory intent include questions like these:

• What year did you graduate from highschool?
• When did you get your first job?
• How many years have you worked in this industry?

It is not unlawful to ask questions about job history, but when those questions seem to be designed to reveal the applicant’s age, they raise concerns about bias toward older workers. San Francisco employment discrimination lawyers regard questions of that nature as red flags.

Questions About Religion

The question “What is your religion?” is a serious red flag. Some employers are hesitant to hire employees who might not want to work on their Sabbath. An employer may legitimately ask “Can you work every day of the week?” but must attempt to accommodate a religious belief when it is reasonable to do so. For example, an employer who can schedule other employees to work on Saturday cannot refuse to hire a Seventh Day Adventist simply because the employee is unavailable for religious reasons to work on Saturdays.

Questions About Marital Status

Some employers prefer unmarried workers because they fear that a married employee will stay home too often to care for sick children or will quit after becoming pregnant. California prohibits discrimination on the basis of marital status. Employment attorneys in San Francisco view a question like “What is your maiden name?” as potentially suspect because the answer will likely reveal whether the applicant is married.

Other Red Flags

It is acceptable for employers to ask for a photograph if appearance is a bona fide job qualification. Other than modeling jobs, appearance is usually irrelevant to job performance. Asking for a photograph before scheduling an interview is concerning because it may be a way to weed out older workers or persons of color.

Sometimes an employer may seem condescending during an interview. This may be the interviewer’s style, but when an interviewer is condescending only during interviews with job applicants who are perceived as belonging to a protected class, the interviewer may be harboring an unlawful bias. Attitude is not usually sufficient proof of a discriminatory intent, but it is a signal that might make a San Francisco job applicant, and an employment discrimination attorney, suspicious.

Stronger evidence of discriminatory intent will be available if the interviewer makes derogatory comments, stereotypes the applicant, or says anything else that suggests hostility toward the applicant because the applicant belongs to a protected class. Job applicants should take careful notes of those comments and should immediately contact a San Francisco employment discrimination attorney if the applicant is not hired.

Getting Help

Red flags and suspicions can often be transformed into evidence of employment discrimination in hiring with the help of the right attorney. The San Francisco employment discrimination lawyers at Minnis & Smallets have years of experience obtaining compensation for discrimination victims. To discuss the details of your situation, call us at 1-415-551-0885 or submit our online contact form.