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  • Writer's picturePeter Lamont, Esq.

Avoid Discrimination Claims by Understanding Pre-Employment Screening

The term “employment discrimination” is frequently tossed around by workers and employers, but what does it really mean and how can employers limit their exposure to these types of employment claims during the pre-employment or hiring phase?Contractors would be well advised to understand pre-employment screening and hiring laws and how to comply.


All employees are entitled, as part of their civil rights pursuant to the Constitution of the United States and most state constitutions, to employment free from unlawful discrimination. At the federal level, the Equal Employment Opportunity Commission (EEOC) regulates, promulgates and enforces federal laws that make it illegal to discriminate against a job applicant or an employee based on a variety of factors.Federal law, pursuant to Title VII of the Civil Rights Act of 1964 (Title VII), Title 1 of the Americans with Disabilities Act of 1990 (ADA), the Age Discrimination in Employment Act of 1967 (ADEA) and related laws, prohibits discrimination by employers on the basis of race, color, sex, religion, national origin, age, disability and genetic information, as well as reprisal for protected activity.

These categories are known as “protected classes.” Included in these broad classes are sexual preference and pregnancy.Separately, most (if not all) states have their own laws concerning workplace discrimination. In some cases, the state laws may supersede federal law, especially in situations where the state law is broader than federal laws. For example, New Jersey’s Law Against Discrimination (LAD) adds additional protected classes to its statute making it stricter than federal laws. Contractors need to be aware of both federal and state employment laws in order to make certain that they are complying with the law.


Under federal law, it is illegal for an employer to discriminate against a job applicant who is a member of one of a protected class. For example, it is unlawful for an employer to refuse to provide a job application to someone because of the sex, age or race. To avoid liability, contractors should provide applications to everyone who requests one. This does not mean that a contractor would be forced to hire someone that is not qualified for the position, it simply means that everyone is given an opportunity to apply.


Every employer wants to make certain that applicants are qualified for the position and want to obtain as much information about the person as possible. Most of this information is obtained during the job interview. However, the interview process is not an open forum where the employer can ask anything they want. In fact, there are a number of topics that are considered “off limits” and should never be asked of an applicant.Under federal law, employers are explicitly prohibited from asking applicants if they suffer from any type of disability. Unlike questions about disability, federal (and most state) laws do not expressly forbid inquiries about race, color, sex, national origin, religion or age. However, questions about such issues should always be avoided as these inquiries may be used as evidence of an employer’s intent to discriminate. As such, employers should avoid inquiries about organizations, clubs, societies and lodges of which an applicant may be a member, or any other questions that may indicate the applicant’s race, sex, national origin, disability status, age, religion, color or ancestry. Additionally, employers should not ask an applicant for a photograph of himself/herself during the pre-employment phase.


In general, it is not unlawful to request or obtain an applicant’s background check. However, the results of the check cannot be used to discriminate against the applicant. Separately, there are some restrictions related to obtaining information about an applicant’s medical and genetic information.It is important to note that individual states may have additional requirements concerning obtaining background checks and pre-interview criminal history inquiries. For example, New Jersey, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Mexico and Rhode Island have laws that prohibit an employer from requiring an applicant to complete any job application that makes inquiries about his criminal record during the initial employment process.


A common question employers ask is: Do they have to hire an applicant who has a disability simply to avoid liability and discrimination claims? The answer is “no,” so long as the protected class applicant is not being hired based on his/her class status or disability.In general, an employer is free to select the most qualified applicant available and to make decisions based on reasons unrelated to a disability. For example, assume that an essential function of a particular job requires the applicant to be able to lift at least 50 pounds and two people apply for the job, one of whom has a disability. The person with the disability can only lift 10 pounds but the other applicant can comfortably lift 50 or more pounds. The employer is free to hire the applicant who can lift 50 pounds as this ability is required for the successful performance of the job.

Employment discrimination and harassment issues are complex, and lawsuits for these claims can be extremely costly. Many discrimination claims arise from pre-employment screening and hiring procedures. Contractors that are hiring employees should take care to avoid basing any hiring decisions on race, color, sex, religion, national origin, age, disability and genetic information. It is also important for employers to be aware of both federal and state employment and discrimination laws.

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