Ready, Set, Hire! An Overview of Legal Issues in the Hiring Process for Businesses (Part 6 of 6)

Discrimination in the Hiring Process

During the first five installments of this series, we discussed legal issues in the hiring process, including insurance, compliance posters, post-offer/pre-employment physical examinations, background checks and social media. We also established that State and Federal laws regarding discrimination in the workplace are applicable during the hiring process. This week, we will provide an overview of the legal burden of proof in order to establish a case of discrimination. Additionally, we will explore the employer defenses.

Burden of Proof

In order to meet the burden of proof, a Plaintiff must establish three elements: (1) that he or she is a member of a protected class (race, religion, gender, age, national origin, etc.); (2) that he or she was qualified for the job in question; and (3) that he or she suffered adverse employment action based on his or her status as a member of a protected class. Adverse employment action includes failure to hire, termination from employment, demotion, forced transfer, discipline, loss of benefits and the like.

In most cases, evidence of discrimination is presented circumstantially. Even where there is no actual evidence of discriminatory intent on the part of an employer, a viable claim may exist where the impact of an adverse action was unfair, or in legal terms “disparate.” One example of this is where a minority race member suffers an adverse employment action due to a previous criminal conviction.

Once the Plaintiff establishes these three elements, the burden then shifts to the employer to establish that it had a legitimate, non-discriminatory reason for taking the adverse employment action. If it can establish that, the employee must then establish that the employer’s reasons are merely pretextual (such as an excuse or cover-up) for unlawful discrimination.

Litigation in Cases of Discrimination

The first level of litigation is before the Federal Equal Employment Opportunity Commission and/or your individual State’s Human Relations Commission. Plaintiffs are required to proceed before administrative bodies before filing a complaint in Federal Court. Before responding to such a complaint, it is critical to consult legal counsel, as administrative bodies are likely tendency to over-reach with respect to information requested. It is not advisable to turn over all documentation requested by the Administrative Body, because they may use that information against you.

In addition to filing an Answer to the Complaint, it is also important to have your counsel draft a Position Statement, which is a narrative overview of the facts and background of the case. As part of your defenses to the Complaint, it is important to also provide other affirmative information about your employment practices, which would contradict the allegation of discrimination. For instance, if an African-American individual alleges race discrimination but was discharged for a policy violation, it is helpful to provide examples of other, non-African American employees who receive the same discipline for the same policy violation. Therefore, the employer is in a position to argue that the adverse employment action had nothing to do with race, but was only based on legitimate business interests and application of policy.

Finally, it is also important for employers to recognize that proceedings before the Administrative Body present, above all things, an opportunity to at least discuss resolution of the complaint before the matter is filed in Federal Court. It is far less costly to litigate at the Administrative level than it is to litigate in the Federal Court system. Again, in the event that a resolution is reached, it is critical to engage legal counsel to prepare a written general release of all claims so as to ensure that the matter is truly over, and no other actions can be filed by the employee.

Thank you for the opportunity to share my knowledge with you in the area of legal issues in the hiring process. I would be happy to answer any questions that you might have, or address any specific issue with you based on the information that has been provided in this blog series.

This is a guest contribution by Eric J. Stark, Esq., of Caldwell & Kearns, P.C. in Harrisburg, PA. You can contact him via email or at 717-232-7661.

Caldwell & Kearns, P.C. is located at 3631 North Front Street, Harrisburg, PA 17110. They specialize in real estate, employment, business, and family law. Visit their website for more information.