Hiring & Firing of Employees: Potential Legal Pitfalls


Title VII (29.U.S.C. Section 2000e-17) prohibits discrimination in hiring employees based on race, color, religion, sex and national origin.  Public and private sector employers that employ at least fifteen employees are covered by the Act. While an employer may inquire about the applicant’s general ability to perform essential job functions, there are numerous pitfalls for the unwary employer. This article examines the criteria that may or may not be used in recruiting and firing employees.

Federal Law

Federal law prohibits using race, color, religion, sex and national origin as factors in promotions, pay raises, transfers, terminations and training opportunities. There are a variety of federal fair employment laws that were enacted to provide everyone an equal opportunity to employment. A basic tenet of the law governing discrimination in employment is that hiring criteria must relate to the job for which the potential employee is being hired.

Civil Rights Act of 1964

The Civil Rights Act of 1964 prohibits discrimination in the employment relationship. It applies to most employers engaged in interstate commerce with more than 15 employees, labor organizations, and employment agencies. The Act prohibits discrimination based on race, color, religion, sex or national origin. The law also covers pregnancy, childbirth or related medical conditions as protected conditions. It makes it illegal for employers to discriminate in hiring, discharging, compensation, or terms, conditions, and privileges of employment.

Age Discrimination in Employment Act of 1967 (ADEA)

This act prohibits discrimination against employees who are over the age of forty.  The ADEA applies to employers with twenty or more employees and covers both the public and private sector.

Americans With Disabilities Act of 1990 (ADA)

The ADA prohibits discrimination on the basis of disability and requires employers to make reasonable accommodations for disabled employees so long as it does not place an undue hardship on their business.

Essential Job Functions

An employer may establish job requirements or standards that would have the effect of excluding disabled individuals, however such standards must be consistent with business necessity.  Nevertheless, if the disabled employee would be able to perform the essential functions of the job with reasonable accommodation, and if the employer can provide reasonable accommodations without undue hardship, the law requires that the reasonable accommodations be provided.  In determining whether an undue hardship exists, several factors must be considered, including the cost of accommodation, the employer’s financial resources and the nature of the accommodation.

Equal Pay Act of 1963 (EPA)

This Act prohibits employers from establishing wage differentials between men and women who are performing essentially the same jobs under similar working conditions. The EPA affects all employees who are covered by the Federal Wage and Hour Law (the Fair Labor Standards Act) and engage in commerce or in the production of goods for commerce. Virtually all employers are subject to the provisions of this Act.

Religious Discrimination

Religion includes the beliefs, religious observances and practices.  Employers must undertake reasonable effort to accommodate the religious needs of applicants and employees.

Refusal to Work on Saturdays

If an employee’s religious beliefs preclude working on Saturdays (Sabbath), if possible and if the employer would not have to pay another employee more, the employer is required to accommodate this religious belief.  If however, such accommodation would cost the employer money or would cause a disruption in business, accommodations may be determined to be unreasonable.

Pregnancy Discrimination Act (PDA)

The PDA prohibits an employer from reassigning pregnant women to other duties due to pregnancy, forcing her to take a pregnancy leave or discriminating in hiring or firing based upon pregnancy.

Employee Polygraph Protection Act (EPPA)

The EPPA prohibits employers from requiring job applicants or employees in the private sector from requiring employees or applicants to take polygraph tests.  The Act is applicable to employers with two or more employees.

Civil Rights Act of  1991

The Civil Rights Act of 1991 provides for monetary damages in cases of intentional employment discrimination.

State Laws

Many states have their own laws prohibiting discrimination in employment.  Federal laws supersede state employment discrimination laws only to the extent that they expand on state anti-discrimination statutes.  A victim of employment discrimination will generally be able to file charges or bring lawsuits under either state or federal law and will have to determine which forum provides the best relief.

Equal Employment Opportunities Commission (“EEOC”)

The EEOC is an independent federal agency originally created by Congress in 1964 to enforce Title VII of the Civil Rights Act of 1964. The Commission is composed of five Commissioners and a General Counsel appointed by the President and confirmed by the Senate. The EEOC carries out its enforcement, education and technical assistance activities through 50 field offices serving every part of the nation; it provides a range of informational materials and assistance to individuals and entities with rights and responsibilities under EEOC-enforced laws. Most materials and assistance are provided to the public at no cost. The nearest EEOC field office may be contacted by calling: 1-800-669-4000.

EEOC Procedures

Any individual who believes that his or her employment rights have been violated may file a charge of discrimination with the EEOC. Many states and localities have anti-discrimination laws and agencies responsible for enforcing those laws. The EEOC refers to these agencies as “Fair Employment Practices Agencies (FEPAs).” Through the use of “work sharing agreements,” the EEOC and the FEPAs avoid duplication of effort while at the same time ensuring that a charging party’s rights are protected under both federal and state law.

Charges of Discrimination

All laws enforced by EEOC, except for the Equal Pay Act, require filing a charge (complaint) with the EEOC before a private lawsuit may be filed in court. To protect the charging party’s rights, the charge must be filed within 180 days from the date of the alleged violation. This 180-day filing deadline is extended to 300 days if a state or local anti-discrimination law also covers the charge. The time limits do not apply to claims under the Equal Pay Act, because under that Act persons do not have to first file a charge with EEOC in order to have the right to go to court.

Procedure After Claim is Filed

The EEOC will notify an employer that the charge has been filed. A charge may be assigned for priority investigation if the initial facts appear to support a violation of law. When the evidence is less strong, the charge may be assigned for follow up investigation to determine whether it is likely that a violation has occurred. The EEOC can seek to settle a charge at any stage of the investigation if the charging party and the employer express an interest in doing so. During the course of investigating a charge, EEOC may make written requests for information, interview people, review documents, and, as needed, visit the facility where the alleged discrimination occurred. The charge may be selected for EEOC’s mediation program if both the charging party and the employer express an interest in this option. Mediation is offered as an alternative to a lengthy investigation. Participation in the mediation program is confidential, voluntary, and requires consent from both charging party and employer. If mediation is unsuccessful, the charge is returned for investigation. A charge may be dismissed at any time if there is insufficient evidence to support the claim. When a charge is dismissed, a notice is issued in accordance with the law that gives the charging party 90 days in which to file a lawsuit.

Resolution of Charges

If the evidence obtained in an investigation does not establish that discrimination occurred a notice is issued, closing the case and giving the charging party 90 days in which to file a lawsuit on his/her own behalf. If the evidence establishes that discrimination has occurred, the employer and the charging party will be informed of this in a letter of determination that explains the finding. EEOC will then attempt conciliation with the employer to develop a remedy for the discrimination. If the case is successfully conciliated, or if a case has earlier been successfully mediated or settled, neither EEOC nor the charging party may go to court unless the conciliation, mediation, or settlement agreement is not honored. If EEOC is unable to successfully conciliate the case, the agency will decide whether to bring suit in federal court. If EEOC decides not to sue, it will issue a notice closing the case and giving the charging party 90 days in which to file a lawsuit on his or her own behalf. In Title VII and ADA cases against state or local governments, the Department of Justice takes these actions.


If the court makes a determination that an employer violated anti-discrimination laws, there are a variety of potential remedies and elements of damage that may be available to the employee. These include back pay, hiring, promotion, reinstatement, reasonable accommodation, or other actions that will make an individual “whole” (in the condition he/she would have been in but for the discrimination). The employee may also be awarded attorneys’ fees, expert witness fees, and court costs.

Intentional Discrimination

Where intentional discrimination is found, the employee may also be awarded punitive damages. Punitive damages are not available against state or local governments.

Advertisements For Employment

Published advertisements that indicate that employment preferences will be given based on race, color, religion, sex, national origin, disability or age generally are unlawful. An exception arises when these criteria are a bona fide occupational qualification. Gender-neutral language should be used in all advertisements.

Employment Agencies

Employers are responsible for eliminating any discriminatory practices of any employment agencies used by them.

Employment Applications And Interviews

The EEOC will consider any questions pertaining to race, color, religion, sex, national origin, disability or age asked on employment applications or at an interview to be strong evidence of discrimination. Inquiries as to date of birth, while technically not a violation, may also be scrutinized.  The focus of questions at the pre-hire stage should be directed to qualifications and experience; after an applicant is hired, information concerning age, marital status, health and drug use may be obtained to the extent it is relevant to insurance or other business matters. Where government-reporting requirements mandate information regarding sex, race or ethnic group, the applicant should be advised of the purpose of the inquiry.

Permitted Inquiry

Questions that are relevant to a bona fide occupational qualification (BFQQ) may be asked. Sex or gender may be relevant as a BFQQ for some jobs, e.g., entertainment related positions, but not for others, e.g., a position as a guard. Parochial schools and other religious institutions may make a particular religious belief an employment requirement. Employers may adopt preferences for Viet Nam veterans if they have federal government contracts

Affirmative Action

‘Affirmative Action’ includes giving preferences to minorities in hiring, promotions and other employment opportunities, as well as programs designed to detect and eliminate discrimination. Positive efforts to ensure equal employment opportunity to groups such as minorities or women- victims of past discrimination- are lawful. Affirmative action may be required as a remedy for past discrimination by a specific employer. Federal government contractors must practice affirmative action if they receive contracts in excess of $10,000- they must take affirmative steps to employ and promote members of racial, ethnic and religious minorities as well as women and disabled individuals. Employers on or near reservations may give employment preferences to Native Americans.

Educational Requirements

Requirements for diplomas or an educational level may, or may not, be discriminatory. If educational achievement is a bona fide job criterion, it is permitted; if utilized primarily to exclude individuals based on race, color or religion, it is unlawful.

Proficiency in English

If proficiency in the English language is reasonably related to job performance, it is a legitimate requirement. An ‘English only’ requirement in the workplace may constitute discrimination on the basis of national origin.

Weight, Height and Fitness

So long as it is not applied in a discriminatory manner and is reasonably related to job performance, employers may impose height, weight and fitness standards if not calculated or intended to disqualify women or persons of certain ethnic backgrounds.

Arrests and Convictions

Convictions of crimes, including drug offenses, if not remote and not applied to eliminate minorities, may be a valid hiring criteria if related to job duties. Arrests may support a non-hiring, but only if the employer reasonably believes that the unlawful act was actually engaged in and that the conduct occurred recently. An applicant should be advised that a conviction would not necessarily lead to disqualification.

Persons with Disabilities

Before making an offer of employment, an employer may not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability. Applicants may be asked about their ability to perform job functions. The Americans with Disabilities Act (ADA) does not forbid all inquiry into medical or mental subjects with pre-employment applicants, but generally requires that an employer conduct such inquiry only after a tentative offer of employment has been made, or is part of a uniform “employment entrance examination”. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in the same job category. Medical examinations of employees must be job-related and consistent with business necessity.

Drug and Alcohol Testing

Employees and applicants currently engaging in the illegal use of drugs are not protected by the ADA. Tests for illegal use of drugs are not considered medical examinations and, therefore, are not subject to the ADA’s restrictions on medical examinations. Employers may hold individuals who are illegally using drugs and individuals with alcoholism to the same standards of performance as other employees.

Employee Promotions And Compensation

Protection against discrimination extends to promotions and compensation for current employees.

Seniority Systems

It is not unlawful to use seniority a basis for promotions and transfers, so long as the seniority system is neutral as to race, color, religion, sex, national origin, disability and age and is used without discriminatory intent. Seniority systems are specifically excepted from Title VII, the Equal Pay Act and the ADEA.

Equal Pay

Employers must provide men and women, irrespective of age or race, the same wages and benefits for work involving the same skills, efforts and responsibilities. Superior performance may, however, be rewarded with higher salaries or bonuses. In examining whether the work requires the same skills, etc., the courts will look to the actual work performed as opposed to the job classification.

Discharge And Discipline

Discharge and disciplinary actions may lead to charges of discrimination. Most often, the allegation is one of unequal or disparate treatment. It is important for employers to maintain adequate documentation, in the form of performance assessments, warnings and prior disciplinary violations to show that termination or disciplinary actions are not discriminatory. The position and claims of the employee charged with an employment infraction should also be documented- the employee should have an opportunity to present and record his/her side of the dispute. Records of the employer’s investigation into violations should be maintained. The reason for termination or other disciplinary action should be explained to the employee. The basis for the termination or disciplinary action should not, however, be communicated to anyone who does not have a compelling and legitimate business as such communication may expose the employer to a libel or slander action..


All managers, and others involved in hiring, promotion, termination and other employee-related decisions should be made aware of and educated as to discrimination laws and the penalties for violating them.

Retaliatory Conduct

It is unlawful to retaliate against employees who file a charge of discrimination or support a co-worker’s claim of discrimination.


Employers are required to post notices to all employees advising them of their rights under the laws EEOC enforces and their right to be free from retaliation. Such notices must be accessible to persons with visual or other disabilities that affect reading.