Applicant Discrimination: How to Avoid a Lawsuit Before Hiring

Can an applicant sue a company before even becoming an employee? Yes, and it happens more often than most hiring managers may realize. 

How Can an Applicant Sue an Employer Before Being Employed? 

 Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate against someone based on race, color, sex, religion, age, national origin, disability, or genetic information. This is true for making any employment decision, including hiring, firing, promotions, job assignments, compensation, disciplinary action, providing references, and so on. 

Because hiring is an employment action, an employer could be sued for illegal hiring practices long before hiring someone. In fact, lawsuits have been filed based on details provided in job postings, where job advertisements are (or are not) found, questions asked in interviews, how pre-employment tests are handled, and so on. 

Here are several lawsuits filed by applicants who were never hired by the company they sued, along with manager takeaways to help you avoid the same fate. 

Applicant Discrimination Based on Sex 

In 2022, a SafeLite AutoGlass location in Texas interviewed a woman for their technician trainee position. She had two years of experience as a repair technician, which involved lifting and moving heavy furniture. In the interview, the store manager expressed concern about her ability to lift heavy weight and suggested a lower-paying position involving less weight. Within one week of the woman’s job interview, SafeLite had hired two lesser-qualified male technician trainees. The woman sued for sex discrimination.  

Manager takeaway: Focus on the candidate’s abilities. If there are lifting requirements for your job, make a conditional job offer based on passing a pre-employment lift test. Keep in mind, however, that if you require one applicant to participate in a pre-employment lift test, plan to make it a requirement for everyone. Singling out just women would be discriminatory and subject your company to a lawsuit. 

Applicant Discrimination Based on Disability 

In 2020, a healthcare provider in Minneapolis failed to hire a deaf applicant. The job responsibilities were to greet visitors, apply COVID-19 masking standards and policies, give directions, and keep the area tidy and welcoming. Despite the applicant’s ability to perform all the essential functions, she was not considered for the position. She sued for disability discrimination.  

Manager takeaway: Per the Americans with Disabilities Act (ADA), you cannot ask disability-related questions until a conditional job offer has been made. If the candidate mentions needing an accommodation in the interview, document it while focusing on their ability to perform essential job functions. When you do make a job offer, ask if they can perform the essential duties with or without an accommodation and determine from there whether the accommodation would be reasonable. Because these situations can be delicate, please contact your certified HR (Human Resources) expert for guidance regarding your situation. 

Applicant Discrimination Based on Race 

In 2019, an Indiana vending and coffee service provider was sued for rejecting a black job applicant for a vending service representative position. According to the lawsuit, the company favored Caucasian applicants and refused to hire a Black applicant, despite his many years of experience. 

Manager takeaway: Evaluate job eligibility based solely on job qualifications (education, relevant work experience, ability to perform essential job functions, etc.). While you do not need to explain your hiring decisions in most settings, you should always be prepared to explain why you chose one candidate over another in the event your decision is challenged in court. 

Applicant Discrimination Based on Age 

In 2016, Glenn McKewen applied for a supply chain manager position in Madison, Wisconsin. He had relevant bachelor’s and master’s degrees, along with years of relevant work experience. RockAuto, the company, responded to McKewen’s application and asked when he received his bachelor’s degree. After learning that his bachelor’s degree was earned more than 20 years previously, he was rejected the next day. McKewen sued for age discrimination. 

Manager takeaway: Never ask for details that could reveal an applicant’s age or other protected information. Be sure your job postings are free from age discrimination terms like new grads and digital natives, and that you post in more places than just trendy social media apps that are geared towards younger audiences. 

Applicant Discrimination Takeaways 

Being ignorant of the law is never a valid defense. If you are involved in any part of your company’s interviewing process, you should be trained to know what not to ask in a job interview. Your HR team should also ensure that your job descriptions do not exclude certain populations, and that your company’s applicant tracking system does not discriminatorily screen out candidates.   

For more information, please contact your certified HR expert. Not a current Stratus HR client? Book a free consultation and our team will contact you shortly.