Hiring Selection Process

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 What Is Employment Law?

Employment laws are a broad set of laws that govern a wide range of legal issues that may arise in connection with:

  • Employees;
  • Employers; and
  • Safety conditions in the workplace.

For example, certain employment laws may apply to cases that involve employment discrimination. Other employment laws may be used to provide guidance when drafting or editing employee handbooks or company policies.

Employment laws were enacted to protect individuals who are part of the workforce, which may include:

  • Providing protections for employees in workplace disputes against:
    • a colleague;
    • an employer; or
    • a company;
  • Ensuring that businesses do not discriminate against prospective job candidates or current employees in certain processes, including:
    • interviewing;
    • hiring;
    • promoting; or
    • terminating;
  • Granting certain rights to individuals who are self-employed or are considered to be independent contractors;
  • Making sure that volunteers and interns are not subjected to:
  • Other issues that may affect employment rights.

Additionally, it should be noted that employment laws may vary by jurisdiction. Therefore, the rights that are provided in one state may not be available in another state.

It is also important to note that certain issues may be governed by both federal and state employment laws, such as pregnancy leave.

What Can Employers Do to Ensure Fair Hiring Practices?

Procedures for hiring employees are governed by numerous statutes in order to protect against discrimination as well as unfair practices. Employers should establish appropriate, standardized selection procedures that are followed each time an employee is hired in order to ensure they comply with all state and federal regulations and do not engage in illegal hiring policies.

To ensure compliance with all federal and state requirements and laws, an employer should establish an appropriate, standardized selection procedure that is followed every time an employee is hired.

What Is Employment Discrimination?

Pursuant to the federal employment discrimination law called Title VII of the Civil Rights Act of 1964 (Title VII), it is illegal for an employer to discriminate against a current employee or a prospective job candidate on the basis of:

If an employer makes a decision regarding the hiring, promoting, or terminating of an employee based on one of the protected traits noted above, an employee may be able to file a claim for employment discrimination in court. In certain cases, a prospective employee or employee may bring a lawsuit against an employee who advertises in a way that discriminates against those traits.

For example, an employer cannot state in a job description that they will only hire individuals who are a certain race. Employment discrimination may also arise when a prospective employee or employee is treated less favorably than a similar employee based solely on certain characteristics, such as those listed above.

Employment discrimination may also occur when a group of employees is treated better than another group based on those protected classes or categories noted above. One example of this would be if a group of workers clearly received benefits which were denied to others based on their sex.

What Is Multiple Factor Employment Discrimination?

In many situations, employment discrimination cases will only involve one specific characteristic of an individual. For example, an individual may be discriminated against on the basis of their country of origin or their age.

Multiple factor employment discrimination arises when an employer discriminates against an individual based on more than one of the traits or characteristics listed above. For example, an individual may be discriminated against in their workplace based on both their gender and their religion.

This may occur in a variety of contexts and may involve numerous different individuals as well as groups.

What Is a Selection Procedure?

Selection procedures may include any procedures, measures, or combination of measures that are used as a basis for employment decisions. Examples of typical selection procedures may include:

  • Written tests;
  • Performance tests;
  • Training programs;
  • Probationary periods;
  • Informal and casual interviews;
  • Unscored application forms; and
  • Physical, educational and work experience requirements.

Under illegal hiring laws, selection procedures cannot disproportionately exclude or discriminate against a protected class unless it is for a job-related and business necessity reason, as governed by the exception of Bona Fide Occupational Qualifications (BFOQ).

It is important to note, however, that, so long as there is no substantial disproportionate impact on a protected group, an employer may use any valid selection procedure.

What Is a Valid Selection Procedure?

Employers are not permitted to discriminate against protected classes. If employers require job applicants to take a test, that test must be related to the job and necessary.

In other words, if an employer uses an actual test to measure an applicant’s capabilities, that test is required to have some correlation to the work that is required in the position. The employer is not permitted to exclude individuals based on the protected characteristics discussed above.

In order to evaluate the validity of a selection test, the test is analyzed using 3 factors, including:

  • Content: Whether there is a direct relationship between the contents of the test and the job;
  • Construct: Whether the test appropriately evaluates abstract qualities that are important for the job; and
  • Criterion: Whether performance on the employment test adequately correlates to actual job performance.

Can an Employer Ask for a Drug Test?

It is legal for an employer to ask a prospective employee to take a drug test, although drug tests are not mandatory. A job applicant may decide to take a drug test.

However, doing so may affect their application. If an employer administered drug tests, they must do so equally and may not do so based on:

  • Race;
  • Gender;
  • Nationality;
  • Disability; or
  • Religion.

Can an Employer Call an Applicant’s Former Employers?

Yes, an employer is permitted to call an applicant’s former employer. Reference checks are a common practice.

These calls, however, may only be related to work performance. Personal information regarding the applicant cannot be requested or provided by either employer.

An employer is not permitted to lie regarding employees. A former employer does have the right to disclose why the former employee left their previous job.

Can an Employer Ask for Personal Information Like Credit Card Numbers?

No, employers cannot ask for personal information or ask about personal topics. If, however, the applicant brings up a personal topic, some leeway may be given.

Asking for personal information, however, such as numbers or passwords, may be illegal depending on the state and the agreements made with companies, for example, Facebook. If an individual has any questions or concerns related to this issue, they should consult with a labor law attorney.

Do I Need an Attorney?

If you are an employer, it is important to ensure your hiring policies comply with all applicable laws. If you are facing a challenge to your hiring policies, you should consult with a discrimination lawyer who can help you ensure you are in compliance with the law.

If you are a prospective employee or employee and you believe you have been subjected to an unfair hiring process or discrimination, it is important to consult with a discrimination lawyer. Your lawyer can advise you of the laws that apply to your case and advise you what actions you can take.


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