Scenario #1: You are recruiting for an accountant position in your business. You have two equally qualified candidates. One is 27, and the other is 52. You choose the one who is 52, preferring to have a more mature employee in the office. The 27 year old cries foul, saying it’s age discrimination. Is it?
Scenario #2: You are considering two equally qualified candidates for an administrative assistant position. One has all private sector experience, and the other candidate’s experience is all military. You decide to hire the second candidate, simply because she is a veteran. Dangerous decision?
When can employers discriminate and be on safe ground?
The law does actually permit you, in some very narrow circumstances, to proactively prefer one class of candidate over another. But, tread carefully, as these circumstances are very narrowly drawn!
When employers may discriminate based on age:
Scenario #1 does not legally qualify as age discrimination. Why? Because the ADEA (Age Discrimination in Employment Act) protects those who are 40 or above from discrimination. It does not protect those under the age of 40.
Therefore, you are able to prefer a more mature worker. Where you might get yourself in trouble, however, is if you apply a different logic to a younger worker.
For example, if one candidate is a woman of child-bearing age, and the other is an older male, and you hire the male because you are concerned that the female candidate could get pregnant or require time off due to having young children, you may very well be violating other discrimination laws.
Employers in Washington can give veterans hiring preference:
In Scenario #2, it is not discrimination in Washington State to give hiring preference to veterans in the private sector. In fact, we were the first state in the country to allow businesses to implement a veterans preference.
Could this ever blow up in your face? It certainly could, if not implemented correctly.
For example, say you have two equally qualified candidates, one male and one female. If you are looking for a reason to hire the man over the woman, realize he’s a veteran, and then decide to apply a veteran’s preference, you could run into a claim of sex discrimination. However, if veteran’s preference is part of your company’s stated hiring policy upfront, you’re on safer ground.
Other times employers may legally discriminate in hiring practices:
There are a couple other circumstances where you may discriminate in your hiring practices.
In Washington state, you may refuse to hire smokers, as they are not a protected class. You may also apply a preference to people with disabilities. Although they are protected from discrimination, there is nothing in the law that states you cannot discriminate based on an applicant’s lack of a disability.
The other time you may discriminate is for a BFOQ (bona fide occupational qualification). Here are a couple examples of that: If you are putting on a fashion show for women’s clothing, and you are hiring models, you would have a legitimate reason for only hiring women. Similarly, if you are casting the role of Martin Luther King in a play, you could legitimately hire a black man for the role based on his race.
Smart employers hire the best talent for the job. But in some cases, there are legitimate reasons for applying preferences. Just be sure that when you do, you know that the law is on your side!