In the Italian job market, it is not unusual to find job postings that read something along the lines of “well established company looking for young and good-looking girl to be hired on a full-time basis”. Another common scenario during job interviews is the job recruiter or hiring manager asking the (female) candidate whether she has or intends to have children. And so, candidates – males and females alike – frequently indicate their age and marital status in their resume, and attach a passport-style picture (probably to show their potential employer that they are indeed good looking).
Apparently, these practices are not only legal, but also socially accepted in Italy.
When Italian investors come to the United States to set up their operations, oftentimes they think that it is ok to apply the same criteria to the hiring process of local employees. Right? Wrong! In the United States, job applicants have legal rights even before they become employees.
Under federal law, an employer cannot illegally discriminate in its hiring process based on a job applicant’s race, national origin, gender, pregnancy, age, disability, or religion. State and local laws may specify additional protected classes based on factors such as the sexual orientation of a job applicant. Employers must abide by anti-discrimination laws at each stage of the hiring process, from placing a job ad, to interviewing, to the final selection of the candidate to be hired. Employers are prohibited from basing any job decisions, including hiring, on someone’s protected characteristics.
And so, an innocent mistake such as posting the wrong job ad or asking the wrong question during a job interview can cost an employer a lot of money. The same is obviously true also once an individual has been hired and has become an employee.
There are a number of key federal laws protecting employees’ rights, which apply to employees in all states unless state employment laws provide more protection to employees.
The consequences of employment discrimination, including during the hiring process, are dire. If an employer is found guilty of an intentional act of discrimination or practices that have a discriminatory effect, an employee or potential employee may be entitled to employment discrimination damages.
The Equal Employment Opportunity Commission (“EEOC”) is the federal agency in charge of enforcing civil rights laws against workplace discrimination. However, after conducting an investigation, the EEOC typically issues a so called “right to sue letter” indicating that the agency has finished processing the case and that the individual is free to file a lawsuit against the employer or prospective employer. The law in this type of cases is usually such that the prevailing party obtains attorneys’ fees from the other party, therefore it is easy to foresee the outcome of discrimination in the workplace, including during the hiring process.
A lawsuit for work discrimination is expensive, time-consuming, and brings bad publicity to the employer, especially if there is no valid arbitration agreement in place and the case is filed in State or Federal Court, where all filings are publicly available.
There are ways to minimize the financial risk associated with this type of lawsuits. It is recommended that employers, small and large, purchase Employment Practices Liability Insurance (“EPLI”), which covers businesses against claims by workers that their legal rights as employees have been violated. While of course EPLI will not protect an employer from being sued, it will alleviate the exorbitant costs and potential consequences that employment litigation has in the United States.
And given the fact that it is practically impossible to prevent someone from filing a lawsuit, even if the employer believes that it did everything by the book, also those employers who think that they always act in accordance with applicable law should obtain EPLI coverage.
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Requests for information or insights on the issue discussed in this article may be addressed to stefano.abbasciano@vallalaw.com. This article is for information purposes only and does not constitute legal advice. The information contained herein may be outdated or incomplete, and shall in no way be taken as an indication of future results. The transmission of this article is not intended to create, nor does its receipt constitute, an attorney-client relationship between preparer and reader. You should not act on the information contained in this article without first seeking the advice of an attorney.