Employers Beware: Hiring Questions May Violate The Law – Employment Law Weekly

Employers Beware: Hiring Questions May Violate The Law

There is increasing scrutiny by federal and state agencies regarding questions posed to job applicants that could improperly screen for age, sexual orientation, pregnancy, criminal backgrounds, etc. In California, the Department of Fair Employment and Housing is monitoring job posts that may improperly screen job applicants for prior convictions, without providing the job applicant the opportunity to explain the convictions, which is required by California law. In a recent federal case, filed by the Equal Employment Opportunity Commission, Software People, Inc., an IT support staffing agency based in Long Island, New York, that contracts with local and state governmental agencies throughout the country, will institute anti-discrimination policies and provide significant training to settle a retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

The EEOC alleged in its complaint that Software People refused to refer an applicant for a desktop support position after the applicant declined a recruiter’s request that he provide the date he completed his education. The applicant objected to the question, noting his belief that questions designed to determine an applicant’s age are illegal under federal law. The recruiter allegedly did not respond to the objection and the applicant was ultimately not referred for the position, despite an earlier assurance that he would be referred. 

According to the EEOC, such conduct violates the retaliation provision of the Age Discrimination in Employment Act (ADEA), which prohibits employers and staffing agencies from retaliating against employees who oppose or object to discrim­inatory employment practices. The EEOC filed suit in U.S. District Court for the Eastern District of New York (EEOC v. Software People LLC, Civil Action No. 2:21-cv-5380) after first attempting to reach a pre-litigation settlement through its conciliation process. This case was litigated by EEOC Trial Attorney Edumin Corrales and EEOC Supervisory Trial Attorney Kimberly Cruz.

The consent decree settling the suit includes significant non-monetary relief to prevent future discrimination, including prohibiting Software People from discriminating and retaliating against employees and applicants based on age and for opposing discriminatory practices; the creation of a robust anti-discrimination policy providing employees and applicants with mechanisms to complain about discrimination; and mandatory training for Software People employees and recruiters about federal anti-discrimination law.  The company must also report to the EEOC on any internal complaints of discrimination or retaliation it receives for the next two years. In lieu of damages for the applicant, the EEOC sought and Software People agreed to make a $15,000 charitable contribution to enhance job opportunities for people in the protected age group.

The lawsuit was settled prior to the parties engaging in pre-trial discovery.

More information on the case is available here: https://www.eeoc.gov/newsroom/software-people-inc-settles-eeoc-retaliation-lawsuit

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