Hiring and Discrimination: Do’s and Don’ts for Your Ohio Business (Part 1)

In January 2021, Ohio enacted the Employment Law Uniformity Act, which goes into effect this month. The Act significantly affects future handling of workplace discrimination claims. While the Act contains generally employer-friendly provisions, employers must still be vigilant to ensure that their hiring and employment practices do not run afoul of the Act or any other state or federal anti-discrimination laws. Now is a good time to review your hiring process and assess areas of potential improvement to help protect your business against suit.

The first part of this article addresses discrimination concerns in the hiring process. A future installment will address issues arising after an offer of employment.

Who is subject to Ohio’s fair employment laws?

Ohio’s fair employment laws apply to any employer with four or more employees. Non-resident businesses are covered if they conduct business in Ohio and engage in conduct giving rise to a discrimination claim that occurred in Ohio.

The Uniformity Act made a significant change in Ohio employment law regarding liability. Ohio employment law now conforms with federal law precluding individual liability for supervisors and managers unless they are also proprietors or the discrimination is a retaliatory act.

Discrimination in the hiring process

As a prospective employer, there are several categories of information you cannot affirmatively request during any part of the employment process. It is discriminatory to seek information on “race, color, religion, sex, military, status, national origin, disability, age or ancestry,” unless the Ohio Civil Rights Commission (OCRC) pre-certifies a bona fide occupational qualification (BFOQ) requiring the information (OH Rev. Code § 4112.02(E)). And if you inadvertently learn of protected information without asking for it, you cannot document the information or retain it in any way.

What qualifies as a BFOQ? The most common example arises in the context of religious affiliation. For example, when a church seeks a new clergy member, the church can intentionally exclude members of other religions during the job search, assuming it has first obtained certification of the BFOQ by the OCRC. As another example, some jobs may require specific manual tasks that would exclude people with disabilities. There is a specific process for seeking BFOQ certification. Businesses should obtain the assistance of an employment lawyer when requesting certification.

Where do potential discrimination issues arise during the hiring process? As the saying goes, let’s start at the very beginning – the job posting.

Job postings

Job postings must be carefully phrased to avoid even the suggestion of exclusion of protected classes. Consider an example the EEOC presents: seeking “recent college graduates.” While this does not specifically exclude older applicants, because most applicants would think the posting seeks people in their early 20s, it may discourage older college graduates from applying. Given the potential for discriminatory effects and suit, your business should avoid similar phrases that suggest specific demographic preferences.

If you have a pre-certified BFOQ for the position, you must identify it in your job posting.

Employment application forms

Given the list of protected information that you must avoid, what can you ask a prospective employee? In addition to standard questions regarding work experience and education, there are a few areas of acceptable inquiry that may surprise you, including:

• Financial history
• Driving record
• Medical history
• Criminal history and convictions
• Social media usage

However, businesses should be careful when pursuing this information as each area comes with its own specific constraints. Moreover, you cannot use these checks to circumvent prohibitions on obtaining, documenting, retaining or misusing protected information.

Background and credit checks

Do Ohio employment laws prohibit employers from running background checks or credit checks on prospective employees? No, and in fact state law requires certain businesses to do so, specifically those where employees have significant contact with children or the elderly. But there are several considerations to keep in mind if you choose to do so.

First, background checks are subject to the federal Fair Credit Reporting Act (FCRA). Under the FCRA, employers who conduct background checks must (1) obtain written consent from the job applicant, (2) give the applicant notice if they intend to reject the applicant based on the check and provide them a copy of the check, and (3) notify the applicant of any final decision to reject the applicant because of the check.

Prospective employers also may not ask questions about prior arrests not resulting in a conviction where records about the arrest have been sealed or expunged. Because employers may not know about the status of arrest records, it is safer to avoid the question. In any event, in such situations, the applicant may respond as if the arrest did not exist.

The EEOC considers questions about prior arrests and convictions inherently discriminatory as they tend to disproportionately affect minority communities. It instructs employers to consider three factors when making hiring decisions about a prospective employee with a prior arrest or conviction: (1) the nature of the job, (2) the nature and severity of the offense and (3) how much time has passed since the offense or completion of a sentence.

Interviewing do’s and don’ts

Interviews are a major source of potential discrimination, as they are less structured than applications. Interviewers should tailor their questions to avoid eliciting protected information. Acceptable questions include:

• Can you perform the duties required by this position?
• Are you able to work during the required hours?
• Are you legally authorized to work in the United States?
• Are you certified to operate our equipment?

Note that the answers to each of these questions potentially implicate protected information, from nationality to disability. But they legitimately address specific job requirements without affirmatively asking for protected information.

Applicants will frequently voluntarily disclose protected information. At this point, you have no potential liability. To avoid creating liability, you should neither comment nor pursue the discussion. And you may not document their comments or retain them in any way.

Interaction of Ohio and federal employment laws

There are a number of other federal regulations you must be aware of as an employer, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Pregnancy Discrimination Act, the Genetic Information Non-Discrimination Act, and the Equal Pay Act.

The Ohio Attorney General publishes employment discrimination guides for employers; however, the guidance is necessarily limited. If you ever have a concern about your business’s compliance with any Ohio or federal employment law, you should immediately seek legal counsel.

This article is meant to be utilized as a general guideline. Nothing in this blog is intended to create an attorney-client relationship or to provide legal advice on which you should rely without talking to your own retained attorney first.  If you have questions about your particular legal situation, you should contact a legal professional.