As professionals in the staffing industry, our clients occasionally want to hire based on non work-related criteria.
They will ask us questions such as, “Is it legal for me to hire only non-smokers? Can I only hire men for this position, since it involves heavy lifting? Is it okay for me to request someone younger for this job?”
It is important to know the answers to these and similar questions to avoid ending up on the wrong side of discrimination laws!
In Washington State, you cannot make hiring decisions based on:
- Age (over 40)
- National origin
- Marital status
- Military service
Smokers are not a protected class in Washington State. Thus, it is legal to make non-smoking a requirement for employment in your company.
However, remember that enforcing this requirement also means making your labor pool that much smaller. Alternatives to this might be requiring your employees to not smoke during work hours, on work property, or in company owned vehicles.
Drug Tests and Criminal History and Credit Checks
Many of our clients establish policies to perform criminal history checks, pre-employment drug tests and credit checks. What is the legality of this?
- Drug tests: If you require pre-employment drug tests, you must do so for every applicant you are considering for the job, not just those of a certain race, age, gender, etc.
- Credit checks: In Washington, the law requires employee credit checks to be substantially related to the employee’s job. For example, it is acceptable to perform a credit check on a bookkeeper or any other employee who handles cash or finances.
However, we, as employers, cannot routinely require credit checks on all of our employees, regardless of the jobs that they perform, because our legislature believes this violates employees’ rights to privacy.
- Criminal history checks: It is illegal to have a blanket crime-free workplace policy in Washington State, as such a requirement might discriminate against a certain protected class.
It is legal to perform criminal history checks and to choose not to hire someone based on the results, provided that:
- The crime relates to the position (for example, it is acceptable to choose not to hire a convicted embezzler for your bookkeeping position).
- You are justifiably unable to assume risk (for example, choosing not to hire a person who has been convicted of a violent crime because their position involves unsupervised interactions with the public, which your company has no way of controlling).
- Thoughtful consideration has been given to the nature of the crime, how long it has been since the crime was committed, what kind of rehabilitation efforts have been made, as well as the candidate’s work history and references.
For more information on discrimination laws in this state, visit the Washington State Human Rights Commission’s website.