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Understanding Racial Discrimination in the Hiring Process

A person with her hand on her chin, looking upset at work.

If your civil rights have been violated, you may have recourse.

Racial discrimination in hiring is a persistent problem that affects the careers and lives of people of color in Ohio and nationwide. Federal law prohibits employers from taking race into account in hiring decisions, but racial discrimination is often subtle and goes undetected.

Unfortunately, the situation is bad enough to force some employees to find workarounds. According to one recent survey, nearly 20% of American workers have changed their names on job applications because of concerns about discrimination, and nearly half of those have changed their name to appear “less ethnic.” The same survey found that over one-third of workers have heard potentially discriminatory questions in job interviews.

Taking race into account in hiring is unlawful, and if you’ve been on the receiving end, you do have recourse. However, proving racial discrimination in hiring is difficult. Here’s what you need to know.

The elements of racial discrimination in the hiring process

An unlawful discrimination claim has two elements. First, the victim must be a victim of a protected class, and second, they must suffer an adverse employment action because of their protected status. In the hiring process, examples of adverse employment actions include:

  • Not offering someone a job because of their race.
  • Offering a lesser job title, or lower wages or benefits, on the basis of race.

Racial discrimination need not be intentional in order to be unlawful. If an employer deliberately and consciously takes race into account in hiring decisions, that is certainly illegal discrimination. But more subtle policies can also result in an illegal disparate impact on applicants because of their race. For example, screening for “culture fits” can result in hiring mostly people who are the same race as most current employees.

What it takes to prove racial discrimination in hiring

In some cases, it’s possible to prove racial discrimination via direct evidence. Very occasionally, there is a “smoking gun,” such as a note from a decision-maker that explicitly mentions race as part of their decision.

More often, however, evidence of racial discrimination is somewhat more subtle. For instance, interview questions like “where are you from?” and “no, where are you really from?” may indicate racial bias on the part of an interviewer.

Alternatively, it’s sometimes possible to prove racial discrimination via evidence of a “disparate impact” on individuals of a certain race. Disparate impacts exist in all aspects of the hiring process, including pre-employment assessments, job advertising, and job interviews.

Federal guidelines use the “four-fifths rule:” in general, if a selection process produces a selection rate for a protected group that is less than 80% of the selection rate for the most frequently selected group, then that is most likely an unlawful disparate impact.

For instance, if a particular employer selects Black applicants at only 75% the rate at which they hire White applicants, that is likely an unlawful disparate impact.

Talk to an experienced racial discrimination attorney about your rights

Again, racial discrimination in employment can be difficult to prove. Employers have a great deal of flexibility and discretion in the hiring process, but they cannot break the law. If you have reason to believe you are a victim of discrimination in hiring, talk to an experienced attorney about your rights and options. Contact Nilges Draher LLC today for a free case evaluation.

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