Bias and Protections in Hiring

Learning Objectives

  • Describe the laws designed to prevent bias and discrimination in hiring

In an ideal hiring process, an organization would generate a job analysis that accurately reflects the requirements of the position, and it would accurately assess candidates’ KSAs to determine who the best individual is to carry out the job’s requirements. For many reasons, hiring decisions in the real world are often made based on factors other than matching a job analysis to KSAs. As mentioned earlier, interview rankings can be influenced by other factors: similarity to the interviewer (Bye, Horverak, Sandal, Sam, & Vijver, 2014) and the regional accent of the interviewee (Rakić, Steffens, & Mummendey 2011). A study by Agerström & Rooth (2011) examined hiring managers’ decisions to invite equally qualified normal-weight and obese job applicants to an interview. The decisions of the hiring managers were based on photographs of the two applicants. The study found that hiring managers that scored high on a test of negative associations with overweight people displayed a bias in favor of inviting the equally qualified normal-weight applicant but not inviting the obese applicant. The association test measures automatic or subconscious associations between an individual’s negative or positive values and, in this case, the body-weight attribute. A meta-analysis of experimental studies found that physical attractiveness benefited individuals in various job-related outcomes such as hiring, promotion, and performance review (Hosoda, Stone-Romero, & Coats, 2003). They also found that the strength of the benefit appeared to be decreasing with time between the late 1970s and the late 1990s.

Some hiring criteria may be related to a particular group an applicant belongs to and not individual abilities. Unless membership in that group directly affects potential job performance, a decision based on group membership is discriminatory (Figure 1). To combat hiring discrimination, in the United States there are numerous city, state, and federal laws that prevent hiring based on various group-membership criteria. For example, did you know it is illegal for a potential employer to ask your age in an interview? Did you know that an employer cannot ask you whether you are married, a U.S. citizen, have disabilities, or what your race or religion is? They cannot even ask questions that might shed some light on these attributes, such as where you were born or who you live with. These are only a few of the restrictions that are in place to prevent discrimination in hiring. In the United States, federal anti-discrimination laws are administered by the U.S. Equal Employment Opportunity Commission (EEOC).

Photograph A shows the side profile of a pregnant woman. Photograph B shows a cross, a star of David, and a crescent displayed next to one another. Photograph C shows an older person with a cane walking down the street.

Figure 1. (a) Pregnancy, (b) religion, and (c) age are some of the criteria on which hiring decisions cannot legally be made. (credit a: modification of work by Sean McGrath; credit b: modification of work by Ze’ev Barkan; credit c: modification of work by David Hodgson)

U.S. Equal Employment Opportunity Commission (EEOC)

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information. Figure 2 provides some of the legal language from laws that have been passed to prevent discrimination.

A group of three boxes is titled, “Selected Text from Legislation Prohibiting Employment Discrimination.” The boxes are arranged vertically. The top box, titled “Title VII of the Civil Rights Act of 1964,” contains the text, “It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” The middle box, titled “The Age Discrimination in Employment Act of 1967,” contains the text, “It shall be unlawful for an employer (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” The bottom box, titled “Titles I and V of the Americans with Disabilities Act of 1990 (ADA),” contains the text, “No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. . . . The term “discriminate against a qualified individual on the basis of disability” includes . . . not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.”

Figure 2. The laws shown here protect employees in the U.S. from discriminatory practices.

The United States has several specific laws regarding fairness and avoidance of discrimination. The Equal Pay Act requires that equal pay for men and women in the same workplace who are performing equal work. Despite the law, persistent inequities in earnings between men and women exist. Corbett & Hill (2012) studied one facet of the gender gap by looking at earnings in the first year after college in the United States. Just comparing the earnings of women to men, women earn about 82 cents for every dollar a man earns in their first year out of college. However, some of this difference can be explained by education, career, and life choices, such as choosing majors with lower earning potential or specific jobs within a field that have less responsibility. When these factors were corrected the study found an unexplained seven-cents-on-the-dollar gap in the first year after college that can be attributed to gender discrimination in pay. This approach to analysis of the gender pay gap, called the human capital model, has been criticized. Lips (2013) argues that the education, career, and life choices can, in fact, be constrained by necessities imposed by gender discrimination. This suggests that removing these factors entirely from the gender gap equation leads to an estimate of the size of the pay gap that is too small.

Title VII of the Civil Rights Act of 1964 makes it illegal to treat individuals unfavorably because of their race or color of their skin: An employer cannot discriminate based on skin color, hair texture, or other immutable characteristics, which are traits of an individual that are fundamental to her identity, in hiring, benefits, promotions, or termination of employees. The Pregnancy Discrimination Act of 1978 amends the Civil Rights Act; it prohibits job (e.g., employment, pay, and termination) discrimination of a woman because she is pregnant as long as she can perform the work required.

The Supreme Court ruling in Griggs v. Duke Power Co. made it illegal under Title VII of the Civil Rights Act to include educational requirements in a job description (e.g., high school diploma) that negatively impacts one race over another if the requirement cannot be shown to be directly related to job performance. The EEOC (2014) received more than 94,000 charges of various kinds of employment discrimination in 2013. Many of the filings are for multiple forms of discrimination and include charges of retaliation for making a claim, which itself is illegal. Only a small fraction of these claims become suits filed in a federal court, although the suits may represent the claims of more than one person. In 2013, there were 148 suits filed in federal courts.

Link to Learning

In 2011, the U.S. Supreme Court decided a case in which women plaintiffs were attempting to group together in a class-action suit against Walmart for gender discrimination in promotion and pay. The case was important because it was the only practical way for individual women who felt they had been discriminated against to sustain a court battle for redress of their claims. The Court ultimately decided against the plaintiffs, and the right to a class-action suit was denied. However, the case itself effectively publicized the issue of gender discrimination in employment.This video discusses the case history and issues. This PBS NewsHour presents the arguments in the court case.

Federal legislation does not protect employees in the private sector from discrimination related to sexual orientation and gender identity. These groups include lesbian, gay, bisexual, and transgender individuals. There is evidence of discrimination derived from surveys of workers, studies of complaint filings, wage comparison studies, and controlled job-interview studies (Badgett, Sears, Lau, & Ho, 2009). Federal legislation protects federal employees from such discrimination; the District of Columbia and 20 states have laws protecting public and private employees from discrimination for sexual orientation (American Civil Liberties Union, n.d). Most of the states with these laws also protect against discrimination based on gender identity. Gender identity, as discussed when you learned about sexual behavior, refers to one’s sense of being male or female.

Many cities and counties have adopted local legislation preventing discrimination based on sexual orientation or gender identity (Human Rights Campaign, 2013a), and some companies have recognized a benefit to explicitly stating that their hiring must not discriminate on these bases (Human Rights Campaign, 2013b).

Americans with Disabilities Act (ADA)

The Americans with Disabilities Act (ADA) of 1990 states people may not be discriminated against due to the nature of their disability. A disability is defined as a physical or mental impairment that limits one or more major life activities such as hearing, walking, and breathing. An employer must make reasonable accommodations for the performance of a disabled employee’s job. This might include making the work facility handicapped accessible with ramps, providing readers for blind personnel, or allowing for more frequent breaks. The ADA has now been expanded to include individuals with alcoholism, former drug use, obesity, or psychiatric disabilities. The premise of the law is that disabled individuals can contribute to an organization and they cannot be discriminated against because of their disabilities (O’Keefe & Bruyere, 1994).

The Civil Rights Act and the Age Discrimination in Employment Act make provisions for bona fide occupational qualifications (BFOQs), which are requirements of certain occupations for which denying an individual employment would otherwise violate the law. For example, there may be cases in which religion, national origin, age, and sex are bona fide occupational qualifications. There are no BFOQ exceptions that apply to race, although the first amendment protects artistic expressions, such as films, in making race a requirement of a role. Clearcut examples of BFOQs would be hiring someone of a specific religion for a leadership position in a worship facility, or for an executive position in religiously affiliated institutions, such as the president of a university with religious ties. Age has been determined to be a BFOQ for airline pilots; hence, there are mandatory retirement ages for safety reasons. Sex has been determined as a BFOQ for guards in male prisons.

Sex (gender) is the most common reason for invoking a BFOQ as a defense against accusing an employer of discrimination (Manley, 2009). Courts have established a three-part test for sex-related BFOQs that are often used in other types of legal cases for determining whether a BFOQ exists. The first of these is whether all or substantially all women would be unable to perform a job. This is the reason most physical limitations, such as “able to lift 30 pounds,” fail as reasons to discriminate because most women are able to lift this weight. The second test is the “essence of the business” test, in which having to choose the other gender would undermine the essence of the business operation. This test was the reason the now defunct Pan American World Airways (i.e., Pan Am) was told it could not hire only female flight attendants. Hiring men would not have undermined the essense of this business. On a deeper level, this means that hiring cannot be made purely on customers’ or others’ preferences. The third and final test is whether the employer cannot make reasonable alternative accomodations, such as reassigning staff so that a woman does not have to work in a male-only part of a jail or other gender-specific facility. Privacy concerns are a major reason why discrimination based on gender is upheld by the courts, for example in situations such as hires for nursing or custodial staff (Manley, 2009). Most cases of BFOQs are decided on a case-by-case basis and these court decisions inform policy and future case decisions.

What Do You Think? Hooters and BFOQ Laws

Four Hooters employees are pictured standing side by side. Three of them are holding plates of food and the other is holding a pitcher of beer. Each of them is wearing a white tank top that says “Hooters,” and high cut shorts.

Figure 3. Hooters restaurants only hire female wait staff. (credit: “BemLoira BemDavassa”/Flickr)

The restaurant chain Hooters, which hires only female wait staff and has them dress in a sexually provocative manner, is commonly cited as a discriminatory employer. The chain would argue that the female employees are an essential part of their business in that they market through sex appeal and the wait staff attract customers. Men have filed discrimination charges against Hooters in the past for not hiring them as wait staff simply because they are men. The chain has avoided a court decision on their hiring practices by settling out of court with the plaintiffs in each case. Do you think their practices violate the Civil Rights Act? See if you can apply the three court tests to this case and make a decision about whether a case that went to trial would find in favor of the plaintiff or the chain.

Try It


Americans with Disabilities Act: employers cannot discriminate against any individual based on a disability
bona fide occupational qualification (BFOQ): requirement of certain occupations for which denying an individual employment would otherwise violate the law, such as requirements concerning religion or sex
immutable characteristic: traits that employers cannot use to discriminate in hiring, benefits, promotions, or termination; these traits are fundamental to one’s personal identity (e.g. skin color and hair texture)
job analysis: determining and listing tasks associated with a particular job
performance appraisal: evaluation of an employee’s success or lack of success at performing the duties of the job
U.S. Equal Employment Opportunity Commission (EEOC): responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information


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