If You Suspect Hiring Bias

If You Suspect Hiring Bias

This article offers general information on legal matters relating to employment. For specific information relating to your situation, please consult an attorney or appropriate government agency. 

It may not happen as often as it used to, but many forms of bias in hiring persist in companies of all sizes across the nation. Fortunately for American workers, a number of protections are available to them.

Hiring discrimination complaints range from gender to pregnancy status, race, ethnic group, religion, age and genetic background. Many complaints are brought under Title VII of the Civil Rights Act of 1964. Related laws include the Age Discrimination in Employment Act, the Americans with Disabilities Act the Pregnancy Discrimination Act (an amendment to Title VII) and the Genetic Information Nondiscrimination Act.

Hiring discrimination against women is a key problem that isn't going away. The segregation of the sexes persists in many occupations. “Most women do the jobs that they've always done,” says Linda Meric, director of the Colorado chapter of 9to5, The National Association of Working Women. Indeed, about 96 percent of secretaries are women, while only 2 percent of electricians are female, according to Jocelyn Samuels, vice president for education and employment at the National Women's Law Center in Washington, DC.

Between fiscal year 1997 and fiscal year 2010, the number of sex-based complaints filed with the Equal Employment Opportunity Commission (EEOC) ranged from a low of 23,094 in FY 2005 to a high of 29,029 in FY 2010, with claims rising noticeably starting in FY 2008. Hiring bias isn't the most common form of employment discrimination, “but there are plenty of examples of discrimination in hiring,” says Vincent Alfieri, a partner with Bryan Cave LLP in New York City.

Bias Is Hard to Prove

“Hiring discrimination is in some ways difficult to uncover,” Samuels says.

Some poorly trained or ill-intentioned hiring managers will ask illegal questions. Eyeing an applicant's wedding ring, an interviewer might ask, “So you're married?” -– an implicitly illegal question. More likely, a question will cross into a gray area. Upon discovering that the interviewee went to the same university, another interviewer might ask, “When did you graduate?” Since age can often be inferred from the answer, a court or investigating agency might find illegal intent in the question.

Consider the HR Department

“If someone is denied a position and they have a feeling it could be discrimination, I encourage them to contact the employment office and ask for feedback on the interview,” Meric says. If the human resources department's response is unsatisfactory, women are urged to call 9to5's hotline, which gives out information on applicable state and federal laws.

“If asked by an applicant about the company's employment audit, a well-trained HR person will be willing to talk about the process openly,” says Alfieri. In some cases, “the human resources department may investigate and possibly grant another interview,” says Barbara Gault, director of research at the Institute for Women's Policy Research in Washington, DC.

But an applicant risks alienating an employer when questioning a company's hiring process. Therefore, many individuals who suspect discrimination bypass the company itself.

Start with the EEOC or a State Agency

After the HR department, the next step is to approach the EEOC, which has a mandate to investigate all complaints of employment-related bias. You could also contact a state or local Fair Employment Practices Agency.

Before initiating a lawsuit, most individuals must bring their complaints to the EEOC within 180 days of the alleged offense. After the EEOC investigates, it may attempt to get the two sides to settle, award compensation to the individual, give the individual permission to sue in court, or dismiss the case for lack of evidence of discrimination or on technical grounds. In 2009, the EEOC rejected nearly 61 percent of bias claims, because it found insufficient evidence.

For Some, a Lawsuit Makes Sense

Dissatisfied with what the EEOC has done for them, some individuals elect to take their complaints to court. “A court can mandate that the employer hire you for the job denied you, give you back pay, and award punitive damages or damages for pain and suffering,” says Samuels.

But a lawsuit comes with costs. “Litigation is time-consuming and expensive unless you get pro-bono representation,” says Gault. On the other hand, “you might end up with better employment or get the employer to change its ways.”

Whether or not to pursue a hiring-bias complaint is a very personal decision with potentially vast implications for your career. After an applicant has a questionable interaction with a prospective employer, it's best to take some time and discuss the matter with a qualified advisor before taking action.