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Is Employment Discrimination Ever Legal?

By Brett Snider, Esq. | Last updated on

Recent college graduates and even seasoned veterans of the job market are becoming increasingly frustrated with the goal of a stable, well-paying job. For employers, there is an increasing worry that a distressed job candidate or employee will amount their personnel practices to discrimination.

Using general discretion as an employer is legal and can be distinguished from outright discrimination, but there are some cases where the distinction is not as clear. Here are a few examples it might be helpful to consider during the hiring process.


Title VII of the Civil Rights Act of 1964 (also known as "Title VII") prevents private employers from discriminating based on race, color, religion, sex, and national origin, with some exceptions. For instance, normally an employer would be in violation of Title VII if he refused to hire a potential employee due to her religion.

But, if that employer is a religious organization, they can deny a candidate a job based on the candidate's religious affiliation.

Nepotism and Cronyism

However bad it might be for business, nepotism and cronyism are not prohibited discrimination and are legal for a private company. This issue should be considered even in a family business, as the appearance of favoritism towards relatives and friends in a business can cause morale problems with non-relative employees.

On the other hand, federal employers are prohibited by law from engaging in nepotism when making personnel decisions.

Credit Status

Obtaining an employee's credit history provides a potential employer a wealth of information, but the Fair Credit Reporting Act provides employers must notify the candidate and obtain their consent first.

The potential employee has the right to deny any employer access to her credit report information, and a copy of any credit report requested must be provided to her. However, it is still not considered discrimination in most states for employers to deny an applicant based on their credit history or lack of a credit report.


There are currently no federal laws that specifically prohibit discrimination based on height or weight. Currently, the only state which provides protection from weight discrimination is Michigan.

Cities' municipal laws may provide their own protections for employees. For example, the City of Santa Cruz, California, has held that discrimination against height, weight, and physical characteristics is illegal.

Employers should take care to ensure their workplace has policies in place to deal with issues of harassment based on appearance. These policies may prevent future suits based on the Americans with Disabilities Act or sexual harassment. A bona fide business purpose provides an exemption to this sort of potential discrimination.

Sexual Orientation

There is currently no federal protection specifically targeting sexual orientation employment discrimination. Many states, such as California and Maine, have outlawed discrimination based on sexual orientation in both private and public workplaces.

In the states without these protections, such as Texas, private and public employers may legally deny an applicant work or fire an employee based on their sexual orientation.

If an employer in Texas or a similar jurisdiction chooses to discriminate based on sexual orientation, they may still be liable if the employee files an EEOC complaint based on a theory of gender discrimination.

The lines between what is and what is not discrimination are thin. Think before you act and if you have questions, talk to a lawyer.

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