Discrimination laws apply at every level of the employment process, from hiring to termination. Discrimination in hiring can be particularly insidious, however, because a prospective employee may not even realize that she lost a job opportunity due to discriminatory hiring practices. In this article, our Bronx hiring discrimination lawyers explain key concepts underlying these claims, so that you can better protect yourself.

Guiding Principles

Federal, state, and municipal laws protect New York employees and job applicants.
A prospective employer cannot base hiring decisions on an applicant’s race, gender, national origin, religion, disability, age, pregnancy, or genetic information. The law recognizes these categories as “protected classes.”
An employer must use neutral hiring practices that do not disproportionately impact a protected class. If employment tests and assessments are administered, they should focus on job skills and requirements, and should be a regular part of the hiring process for all applicants.
During the interview process, employers should ask neutral questions that focus on a candidate’s capability and fit within the organization. Questioning should be consistent from one applicant to the next.
Let’s look at some examples specific to the interview process:

What Questions Can an Employer Ask at an Interview?

During an interview, expect questions about your educational background, work experience and skills. You may be asked questions that assess your work ethic and interpersonal relationship skills. Depending on the job, you may also be asked about:

  • Your willingness to travel or relocate;
  • Your willingness to work weekends or flexible hours;
  • Your ability to perform physical and mental duties of the job; and
  • Your ability to fulfill the legal requirements of a job.

These categories of questions are lawful and not discriminatory.
If a characteristic or requirement is reasonably necessary for a job, it may be considered a “bona fide occupational qualification” (BFOQ), and you may be questioned about it during the interview. For example, a bartender may have to be at least 21 years old to serve alcohol, so the employer may ask age-related questions. However, stereotypical assumptions cannot be the basis for a BFOQ or any related interview questions. For example, an employer cannot assume a man is incapable of teaching kindergarten because of gender-based stereotypes or cultural preferences.

What Questions Cannot Be Asked at an Interview?

An employer cannot ask questions related to your membership in a protected class. For example, an employer cannot ask you about your:

  • Ability to speak other languages (unless material to the job);
  • Physical abilities (unless material to the job);
  • Marital or familial status;
  • Gender identity or sexual orientation;
  • Age (other than to determine you are at least 18 years old);
  • Family planning or whether you have children; or
  • Race, ethnicity, or religious identification.

Sometimes, a question is clearly illegal: “Do you plan on having children?”
Other times, the approach is more subtle: “How did you get that scar?” or “Your accent is beautiful, where did you pick it up?”
If a prospective employer asks you an illegal question, you do not have to answer it. You can try to divert the interviewer or reframe the question or, if you feel harassed or threatened, end the interview and contact a Bronx hiring discrimination lawyer.

What Can I Do if I am Subjected to Discriminatory Hiring Practices?

If you believe you were denied a job for discriminatory reasons or were otherwise discriminated against in the hiring process, you have the right to file a complaint with a New York or federal fair employment practices agency. Once a complaint is filed, the agency will investigate the alleged discrimination. If it finds violations, it may file a lawsuit on your behalf. However, the agency may also opt not to prosecute the employer. In that case, you may receive a “right to sue” letter.  Upon receipt of this letter, you may proceed with a civil lawsuit.  Strict filing deadlines apply to both the agency complaint and the lawsuit, so it is important that you not delay in asserting your rights.

Contact a Bronx Hiring Discrimination Lawyer

While it can be difficult to prove hiring discrimination, it is a reality for many applicants. If you believe you have been subjected to discriminatory hiring practices, please call us or click “Contact Us,” above, to reach us by email. We can assess your particular situation, explain your rights, and guide you through the legal process.