Protected classes

Scope

Employers may not use a person’s membership in a protected class as a factor when making employment decisions.

Regulatory citations

• None

Key definitions

• None

Summary of requirements

Employers can not use a person’s membership in a protected class as a factor when making employment decisions (hiring, promotion, etc.). Classes protected under federal law include:

• Age
• Disability
• National origin
• Pregnancy
• Race
• Religion
• Sex (including sexual orientation and/or gender identity)
• Genetic information

In addition, many states have created discrimination laws that include additional protected classes. Some of the more common classes protected by state laws include:

• Arrest or court records
• Military service
• Use of a lawful product (like tobacco)
• Engaging in lawful activity outside of work

How the laws apply. In most cases, the issues that surround each protected class are similar. You can’t make employment decisions where age, religion, sex, or any other protected class is a motivating factor. This includes making decisions based on stereotypes or assumptions. Examples might be:

• Refusal to hire women on the assumption that they’ll need more time off to care for children; OR
• Refusal to hire minorities on the assumption that customers prefer working with Caucasians.

The law also prohibits unintentional discrimination, like seemingly neutral job policies that have a negative effect and are not job related. For example, a minimum height restriction might unintentionally limit the hiring of Asians or Hispanics.

It’s also illegal to discriminate against someone because they associate with someone in a protected class, or because of membership in an organization, church, or school.

Of course, when employees take advantage of other laws that grant rights (such as the FMLA, USERRA, and workers’ compensation) you can not use the fact that the employee utilized those benefits in making an employment decision.

The hiring process. Awareness of which classes are protected is essential to avoiding discrimination in the hiring process. In particular, advertisements, job applications, and interviews can create the impression of discrimination. Requests for certain information can suggest that the information will be used unlawfully in a hiring decision. If members of a protected group are excluded from employment, the fact that the information was requested could be used as evidence of discrimination.

You may need to develop procedures to keep certain information separate. For instance, if you need information about race for affirmative action, you can use a separate sheet for the self-identification of race. This page should not be part of the application itself, and should not be used in the selection process. Some employers find that they can keep information about an applicant's membership in a protected class away from individuals whose job it will be to make a hiring decision.

Make sure your job applications comply with state laws as well, especially if the same application form is used in more than one state, and is then used in another state with different restrictions. State or local laws may include provisions that federal law doesn’t cover, such as sexual orientation, gender identity, arrest records, or the lawful use of a legal substance (like tobacco).

Interviews. There are a number of questions you should avoid asking during interviews, especially questions that suggest that you may be taking illegal factors into consideration. This would include questions that ask about a candidate’s race, national origin, gender, and so on - anything that may provide information about a candidate’s protected class. Asking questions like:

• “Are you a U.S. citizen?” could imply intent to discriminate based on national origin;
• “Are you planning to have kids?” could imply intent to discriminate based on gender, pregnancy, or marriage;
• “What year did you graduate from college?” could imply age discrimination; or
• “That’s an unusual last name. Where are you from?” could imply national origin discrimination.

These types of questions have nothing to do with the person’s ability to perform the job.

Instead, you can ask these questions:

• “Are you legally eligible for employment in the United States?”
• “Are you able to work the required hours?” or
• “Do you have a college degree?”

These questions don’t solicit information that you don’t need to know.