There are some interview or application questions that might elicit information that could get an employer into legal hot water if used to make an employment decision. Questions that touch on sex identity and sexual orientation should be off-limits. Here are some acceptable and unacceptable questions to help employers avoid problems in this area.
The following is a guest blog post by Jeffrey Osofsky, an attorney at Munger, Tolles & Olson LLP in Los Angeles with a practice focusing on defending employers and individual managers against employment-based lawsuits. Mr. Osofsky wishes to thank Munger Tolles Partner Terry Sanchez for his assistance with this post.
California’s Fair Employment and Housing Act generally prohibits employers from basing their employment decisions on certain protected characteristics (race, sex, pregnancy, etc.). But what happens when an employer sued for discrimination can show that, despite any unlawful consideration, it would have reached the same decision about that employee anyway?
Compliance with immigration laws is getting increasing media and enforcement attention, putting more pressure on employers. And don’t forget the Supreme Court’s recent decision upholding “Arizona’s ‘business death penalty’ for employers who repeatedly hire undocumented workers.” As a result, employers need to be proactive and make affirmative strategic decisions on immigration issues in hiring.
It’s becoming harder to establish that a peremptory challenge to a potential juror is discriminatory. It sometimes seems that almost any justification for striking a racial minority or a woman from the jury venire will be accepted. And woe to a party who is challenging a trial court’s finding against the existence of discrimination — talk about high hurdles.
As Corporate Counsel puts it, “[t]he day of weight discrimination as a legal matter is only dawning.” The ramifications of such laws are vast and frightening to employers. Instead of being afraid, employers, and the attorneys who represent them, need to be prepared for likely growth in this area of the law.