Discriminatory Hiring Practices Apparently Increasing During the Recession

The job market is currently challenging to navigate for all hopeful applicants. However, recent evidence suggests that getting hired and remaining employed may be even more challenging for minorities, the disabled, pregnant women and immigrants. Though these groups have traditionally experienced varying degrees of discrimination in the workplace, it seems that the recession has magnified the risks of vulnerable groups facing hiring and general employment discrimination.

Late last year, the New York Times reported that the discrimination minorities are facing is rarely overt. In fact, job seekers and employees often agonize with the question of whether the treatment they have received from employers and potential employers raises to the level of discrimination, let alone intentional discrimination. However, several academic and governmental studies confirm that whether or not current discriminatory practices are deliberate, minorities are facing disparate treatment in the hiring and employment markets. For example, the Bureau of Labor Statistics reported that the unemployment rate for black male college graduates 25 and older was nearly twice the unemployment rate for white male college graduates 25 and older in 2009.

What Practices are Considered to be Illegally Discriminatory?

Most federal and state employment discrimination laws protect against discriminatory practices in many areas of employment. Discriminatory practices that are often prohibited include disparate:

  • Hiring and firing
  • Compensation, assignment, transfer, training, promotion and classification
  • Disability leave, fringe benefits and other conditions of employment
  • Harassment, employment decisions based on stereotype and denial of employment opportunities

Those who are illegally discriminated against may be eligible to recover lost wages, employment, promotion, reinstatement, reasonable accommodations, legal fees and punitive damages.

Discrimination Under Federal and State Law

There are several laws which protect vulnerable groups from discrimination in hiring and during the scope of employment:

  • Various Groups: Title VII of the Civil Rights Act of 1964 protects against practices that have a discriminatory effect on applicants or employees based on their race, color, religion, sex and national origin. The Civil Rights Act of 1991 allows various groups to recover monetary damages in situations that involve intentional employment discrimination
  • Age: The Age Discrimination in Employment Act of 1967 protects against discrimination based on age if the applicant or employee is age 40 or older
  • Disability: Titles I and V of the Americans with Disabilities Act of 1990 protect against discrimination based on qualified disabilities
  • Sex: The Equal Pay Act of 1963 protects against disparate levels of compensation for men and women who work in the same establishment and perform substantially similar work

The above laws are enforced by the U.S. Equal Employment Opportunity Commission (EEOC). With the exception of discrimination claims filed under the Equal Pay Act, the EEOC requires that any individual alleging that they have been discriminated against first file a complaint with the EEOC before filing a private lawsuit. Generally these complaints must be filed within 180 days from the date of the incident involving discrimination, but in certain circumstances, 300 days may be allowed.

Once a complaint is filed with the EEOC, the EEOC will likely begin an investigation into the alleged discrimination. The EEOC may seek to settle or mediate the claim or it may dismiss the claim if it decides that further investigation will not reveal a legal violation. If the claim is dismissed, the individual filing the claim will be granted 90 days to file a private lawsuit. Finally, if the EEOC determines that illegal discrimination has occurred and the claim is not settled, mediated or dismissed, the Commission may file a lawsuit in federal court on behalf of the claimant. Most often, the EEOC issues a “right to sue letter” titled “Notice of Rights” giving the complainant the right to file a lawsuit within 90 days.

Texas has also enacted employment discrimination laws under the Texas Labor Code. Usually the complaint is filed simultaneously with the EEOC and the Texas Workforce Commission. Similar to the EEOC, the Texas Commission will investigate the charge, and if not resolved, it will also issue a notice called “Dismissal and Notice of Right to File a Civil Action.” Under Texas law the claimant is given 60 days to file the lawsuit after the letter is issued. Remember the federal EEOC dismissal gives 90 days to file and the State of Texas gives 60 days to file a lawsuit, depending on the agency that issues the notice.

For Further Reference

If you have questions about whether the treatment you or someone you care about has received from an employer or potential employer was illegally discriminatory, please contact an experienced employment law attorney.