Legal Rights During the Hiring Process

Landing a new job involves many steps, from applying and interviewing to negotiating offers. At every stage, prospective employees have certain legal rights that must be protected. Federal and state laws protect job candidates from discrimination and ensure a fair hiring process.

Employers must abide by anti-discrimination laws at each stage of the hiring process, from placing job advertisements and job postings to interviewing the final selection of candidates. Understanding these rights is crucial to ensure you're treated fairly during the hiring process.

Learn about key legal protections for job seekers during the hiring stage below.

You can also download FindLaw's Guide to Hiring [PDF] to keep as a handy guide to your rights in the hiring process.

Federal Anti-Discrimination Laws

In many instances, job applicants have the same legal protections as employees. A federal law, Title VII of the Civil Rights Act of 1964, is a core protection for job seekers. This federal law makes it illegal for employers to discriminate against applicants based on a legally protected characteristic. So, employers can't discriminate against those who belong to a legally protected group.

Legally protected characteristics under Title VII include:

• Race
• Color
• Religion
• Sex (including gender identity, sexual orientation, and pregnancy)
• National origin

Other federal laws also protect workers, whether they're employees or job candidates. These include:

• The Age Discrimination in Employment Act (ADEA) protects those 40 years of age or older from employment discrimination based on age.
• The Americans with Disabilities Act (ADA) prohibits discrimination against individuals with disabilities. It requires employers to provide reasonable accommodations to qualified employees with disabilities.
• The Equal Pay Act of 1963 (EPA) makes it illegal to pay different wages to men and women if they perform equal work in the same workplace.
• The Genetic Information Nondiscrimination Act of 2008 (GINA) makes it illegal to discriminate against employees or applicants because of genetic information. In October 2023, Dollar General agreed to pay $1 million to settle a lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC) alleging that it improperly requested family medical history from job applicants.

State and local laws may specify additional protected classes based on factors such as a job applicant's marital status and family status.

Discrimination Exception

There are some limited circumstances under which an employer may discriminate against job applicants. An employer may show bias if a bona fide occupational qualification (BFOQ) exists. This means the trait in question is a valid and necessary job requirement.

For example, according to the U.S. Department of Labor, it's illegal under the ADEA for an organization to discriminate based on age unless the employer can show that an age limitation for the position is necessary for the performance of job duties.

Employer Interview Questions

Generally, employers should avoid questions related to classes protected by discrimination laws. Employers should avoid the following types of queries during the interview:

• Whether the applicant has children or intends to have children
• Marital status of the applicant
• Applicant's race
• Applicant's religion
• Applicant's sexual preference
• Applicant's age (other than inquiring whether over the age of 18)
• Whether the applicant suffers from a disability
• Applicant's citizenship status
• Questions concerning drug or alcohol use by the applicant

You can provide this information during a job interview. If so, the employer can discuss these topics to the extent necessary to answer your questions related to these topics.

Background Checks

The hiring process often involves a background check. Most employers conduct background checks of potential new hires to verify job qualifications, check to see if a job applicant has a criminal history, and protect their companies from making bad hiring decisions.

The federal Fair Credit Reporting Act (FCRA) regulates background checks.

The FCRA imposes consent and disclosure requirements on employers that conduct background checks. These include:

• Employers must notify job applicants and employees about the background check.
• Employers must tell workers that the information might impact employment decisions.
• Employers, after the above disclosures, must obtain written permission if conducting a background screening through a third party. But if the employer is conducting inquiries on its own, such as by calling a worker's former employer, the employer doesn't have to obtain permission.

States may have additional requirements. Some states, such as California and New York, have their own version of the FCRA.

Some states and many cities have passed ban-the-box laws. The laws eliminate the checkbox on the employment application that asks if the applicant has a criminal record. They determine when and if criminal records can be considered in hiring decisions. Generally, these laws prohibit employers from conducting background checks until after an offer of employment has been made.

Salary history bans are also in effect in many states and cities. The laws generally prohibit an employer from asking job applicants for their past wage history.

Hiring Process

Whenever an employer hires a new employee, there are various things the employer must do before the new employee begins work. These steps include:

• Obtaining a federal employment identification number for each new employee from the Internal Revenue Service (IRS)
• Registering with their state's employment department for payment of unemployment compensation taxes for each new employee
• Setting up an employee pay system to withhold taxes to be paid to the IRS
• Obtaining workers' compensation insurance
• Preparing an Injury and Illness and Prevention Plan for the Occupational Safety and Health Administration (OSHA)
• Posting required notices in the workplace as required by the Department of Labor (DOL)
• Assisting employees with registration for employee benefits
• Reporting federal unemployment tax to the IRS

Contract Laws Apply to Job Offers

Employers should avoid making promises to new employees during the hiring process. False statements or phony promises by an employer may result in an enforceable employment contract. Examples that could get employers in trouble include a promise that:

• Stock options will be worth a certain amount
• The employee has a job for life
• The employee will receive significant pay increases

So, if these promises aren't kept, you can sue for breach of contract. The employer will be responsible for any damages the employee incurred in relying on the employer's promise.

Were Your Legal Rights Violated While Looking for Work? Get a Legal Claim Review

During the hiring process, prospective employees enjoy several rights under the law, including contract protections and freedom from bias. If you believe your rights were violated, you should seek legal advice from an experienced employment law attorney.

Have a local lawyer review your potential claim.