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Making an Employment Decision?

Hiring Practices That Have a Negative Effect on Certain Applicants

Some hiring practices may have an especially negative effect on applicants of a particular race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, disability status or age (40 or older).

For example:

  • Requiring that applicants be within a certain height or weight range may have an especially negative effect on female applicants.
  • Requiring that applicants pass a physical agility test may have an especially negative effect on older applicants.
  • Requiring that employees live within a certain geographic region may have an especially negative effect on applicants of a certain race.
  • Broadly excluding applicants with criminal records may have an especially negative effect on applicants based on race or national origin.

Hiring practices that have an especially negative effect on a particular set of applicants are not automatically illegal. However, you may need to take additional steps to avoid potential problems.

In particular, ensure that hiring practices that have an especially negative effect on applicants of a particular race, color, religion, sex, national origin or disability status are necessary for safe and effective job performance. For example, would people who are shorter or lighter than the height or weight restrictions be unable to perform the job safely or efficiently?

Ensure that hiring practices that have an especially negative effect on applicants who are 40 or older are based on a reasonable factor other than age. For example, if older applicants tend to pass a physical fitness test at a lower rate than younger applicants, ensure that the test is reasonably designed and administered to achieve a legitimate business purpose (for example, the speed, strength or agility required to perform a job).

You may also want to determine if there are other selection practices that would meet your needs and would have less of a negative effect on applicants. For example, your small IT business's residency requirement (requirement that employees live within a certain geographic region) is intended to ensure that employees are familiar with the area and can quickly respond to on-site service calls. The residency requirement may have an especially negative effect on applicants of a certain race, who may be more likely to live just outside of the residency boundary. If so, instead of imposing a residency restriction, you might consider requiring that applicants be familiar with the geographic region your business serves and able to respond promptly to on-site service requests.

These rules can be complicated. You may want to consult a lawyer or contact the EEOC for assistance.

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