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Job Hunting? Know Your Legal Rights During the Hiring Process

manager takes notes on a copy of a resume during an interview.

Arm yourself with the information you need to protect your rights.

January and February are the peak hiring months in most fields, so it's no surprise that many Ohioans are currently looking for a new job or at least taking a look at the job market. While any job search can be stressful and intimidating, it's important to know that you have legal rights. Here are three of the most common violations of employment laws during the hiring process.

Discrimination in job advertisements

Employers cannot put requirements in their job ads that discourage or deter people with certain protected characteristics from applying. For instance, while it's legal to request a certain range of experience, language such as "recent college graduates preferred" may constitute illegal age discrimination. Requiring English proficiency is fine, but "native English speakers only" may constitute discrimination based on national origin.

Another common issue is putting physical strength or flexibility requirements in postings for irrelevant jobs. For example, it's not a problem to put "must be able to lift up to 50 pounds" in a job description for, say, a warehouse worker if lifting is a routine, unavoidable part of the job. But for an office worker who does not routinely lift heavy objects, the same language in a job listing may constitute illegal discrimination against older, pregnant, or disabled workers.

Unlawful job interview questions

There are certain areas where employers need to tread very carefully during interviews to avoid illegal discrimination. Questions that brush up against these topics need to be narrowly tied to the actual requirements of the job. Here are some of the most common examples:

  • Age: Remember, it's illegal under federal and Ohio law to discriminate against employees over the age of 40. Questions like "how long have you been in the workforce?" or "how close are you to retirement?" are unlawful because they're de facto about age. However, asking how many years of experience you have in a particular field is legal.
  • National origin: Questions about whether you were born in the United States or your ethnic background can constitute illegal discrimination. Employers can ask whether you are legally authorized to work in the United States, but broader questions about your immigration status or national origin are potentially illegal.
  • Religion: Unless the employer's character and purpose are religious in nature — that is, an explicitly religious organization, not just a secular company with religious owners — it's illegal to consider religion in hiring. Employers are free to ask about your availability and flexibility, but not whether you practice a religion or attend religious services.
  • Disability: Employers are not allowed to discriminate against candidates who can do the job with or without reasonable accommodations. It's okay for an interviewer to ask if you have any medical conditions that would prevent you from doing the job entirely, but beyond that, they shouldn't ask about your disability or medical history. Discussions about specific accommodations are better saved for later in the process.

If you're asked an illegal interview question, one option is to deflect it: "My personal life won't interfere with the job" is a reasonable response. You can also turn it around on the interviewer: "Why do you ask?" Or, you can answer it if you're comfortable doing so, but take note in case there are issues later in the process. Remember, it's not your job to avoid sharing information about your protected characteristics; it's their job to follow the law and refrain from illegal discrimination.

Criminal Background Checks

In Ohio, it's generally legal for an employer to run a criminal background check on a prospective employee, but there are several laws that limit how employees can conduct those checks and use the information they find. For example, under the federal Fair Credit Reporting Act (FCRA), a prospective employer must get your written consent before conducting a background check, give notice if they intend to disqualify you for the position based on the background check, provide you with a copy of the report, and notify you if they make a final decision not to hire based on your background check. The FCRA also gives you the right to dispute a criminal background check and requires the background check firm to conduct a reasonable investigation and notify the employer if any information is incorrect.

Furthermore, while there is no law against discriminating on the basis of criminal record per se, some employers' policies may run afoul of other anti-discrimination laws. For example, a blanket policy of never hiring anyone with a criminal record may constitute illegal discrimination against demographic groups that have a disproportionately high rate of arrests and convictions, such as African-Americans and Latinos.

Finally, under Ohio law, employers can generally only ask about criminal records that have been neither sealed nor expunged. If you are questioned about a record that was sealed, you are entitled to answer as though it never happened.

If you were discriminated against, contact Gibson Law, LLC.

Discrimination in hiring is an incredibly pernicious problem because it reinforces biases at every level of employment. It can also make a huge difference in your career and livelihood. If you believe you are a victim of unlawful discrimination in hiring, we'd be happy to listen to your story and explain your options. Contact Gibson Law, LLC today.

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