Allowable Discrimination For Jobs

Question

Just lately I realized that anti-discrimination/equal opportunity legislation only applies to proscribed categories of discrimination grounds, e.g. race, ethnicity, gender, orientation, age, etc. Up to then I'd assumed that custom & practice processes like:

• Giving all applicants a fair opportunity

• Advertising positions internally, locally, nationally and internationally in that order

had an obligatory legal basis.

So in the western hemisphere is it quite legal for employers in non-union workplaces (assumed not special jobs where discrimination is allowed) to do things like:

• Exclude close family/marital relations of existing employees ?

• Summarily hire members of the business owner's family ?

• Exclude internal applicants from consideration for jobs for which they have relevant qualifications ?

• Hire non-local (here defined as those who can commute to work from their existing home) candidates in preference to local ones similarly qualified

• Hire foreigners where they have suitable work permits ?

Answer 1

In england-and-wales there is no legal requirement, in the private sector, to advertise vacancies and employers can recruit whoever they choose as long as they do not commit unlawful direct or indirect discrimination and follow their own internal HR policies.

Re: In the western hemisphere is it quite legal for employers to do things like...

• Exclude close family/marital relations of existing employees? YES

• Exclude internal applicants from consideration for jobs for which they have relevant qualifications? YES

• Hire non-local (here defined as those who can commute to work from their existing home) candidates in preference to local ones similarly qualified? YES

• Hire foreigners where they have suitable work permits? YES

• Summarily hire members of the business owner's family? YES as long as they are not "phantom" employees only put on the books soley to evade tax liabilities by, for example, paying a salary when they don't do any actual work.

Answer 2

Up to then I'd assumed that custom & practice processes like:

Your assumption is just plain wrong. Businesses are free to run their affairs in whatever way they deem best (within normal legal boundaries). That includes hiring and firing UNLESS the employee is part of a specific protected class or category.

In the western hemisphere in general everything is allowed that's not specifically forbidden.

This being said, many companies will do what you assume, but not because they are legally required to do so, but because they feel it's good business practice. There is an evolutionary component to this: a company that hires incompetent family members is more likely to go under than one that hires qualified and motivated people.

Answer 3

Laws on such matters vary. Countries in South America, say, are likely to have different laws than the US will. Indeed Canada's employment laws differ significantly from those of the US. There are differences between states within the united-states as well.

That said, I do not think any state in the US has legal requirements similar to those suggested in the question for private-sector jobs.

Specifically, you ask if an employer may legally:

1. Exclude close family/marital relations of existing employees
2. Summarily hire members of the business owner's family
3. Exclude internal applicants from consideration for jobs for which they have relevant qualifications
4. Hire non-local (here defined as those who can commute to work from their existing home) candidates in preference to local ones similarly qualified
5. Hire foreigners where they have suitable work permits

The US generally follows "employment-at-will" practices, which means that the employer has very wide discretion to hire and fire anyone the employer pleases, for any reason or none. At the federal level there are several specifics anti-discrimination laws:

• Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) This prohibits employment discrimination on the basis of race, color, religion, sex, and national origin. This applies to state and federal government employers as well as private employers with over 15 employees. It was later amended to add pregnancy, childbirth, or a related medical condition to the protected classes. It is enforced by the U.S. Equal Employment Opportunity Commission (EEOC).

• The Age Discrimination in Employment Act (ADEA) (codified at 29 U.S.C. 621-634). This prohibits discrimination against employees who are over 40 on the grounds of age. It applies to state and federal government employers as well as private employers with 20 or more employees. It is also enforced by the EEOC.

• The Americans With Disabilities Act (ADA) (codified at 42 U.S.C. 12101 et seq.) This prohibits discrimination against people with actual or perceived disabilities. It does not apply when the person is not able to perform the essential functions of the job, even with reasonable accommodation. It also offers various other protections to such people. It applies to local, state, and federal government employers as well as private employers with over 15 employees. It is also enforced by the EEOC, and the US Dept of Justice (DoJ).

• The Immigration Reform and Control Act of 1986 (IRCA) (codified at 8 U.S.C. 1324b). IRCA prohibits employers from discriminating against applicants and employees on the basis of their citizenship or national origin. However, the relates section 1324 prohibits employing aliens not properly authorized to enter the US, or without authorization to work there. It is enforced by the DoJ.

• The Civil Rights Act of 1866 (codified at 42 USC 1981) prohibits employment discrimination n the basis of race, as well as various other discriminatory practices. It was originally intended to remove legal limits on former slaves after the US Civil War, but has been interpreted to prohibit any racial or ethnic discrimination. It grants a right of private action (law suit) in state or federal court.

• The Genetic Information Nondiscrimination Act of 2008 (GINA) (codified at 42 U.S.C. 2000ff et seq.](https://www.law.cornell.edu/uscode/text/42/chapter-21F) prohibits employers from using an applicant's or employee's genetic information as the basis for employment decisions and requires employers to keep genetic information confidential. It applies to state and federal government employers as well as private employers with over 15 employees. It is enforced by the EEOC.

See also Nolo's page: "Federal Antidiscrimination Laws".

Most states have state-level employment discrimination laws that roughly follow the federal Title VII above. Some specify sexual orientation as a protected class. Some have other additional protections. Most are enforces by specific state agencies.

As to the specific practices mentioned above:

1. Yes, employers may exclude person married or related to current employees. Many do this to avoid nepotism or undue influence, although many limit such exclusions to cases where the relation has hiring or administrative authority.
2. Private Employers may give preference to persons related to the ownes if they so choose and their policies permit this. Many large corporat forms will not do this as a matter of policy.
3. Whether to consider internal applicants first or at all is entirely a matter of employer policy, and there is no legal requirement either way.
4. Many employers will not consider distance from the work site at all, provided that the employee will be readily available as needed. In some US states it may be illegal to discriminate for or against commuters. I don't know of any jurisdiction that requires favoring non-commuters for private employees, although some local government positions require that the employee live within the municipality or other employing jurisdiction.
5. As mentioned above IRCA prohibits discrimination against non-citizens who have valid work authorizations, such as "green cards". However, persons employed only on an H1-B visa can usually be hired only if an attempt to find a US Citizen has failed, or is asserted to be impractical.

The assumptions mentioned in the question are not generally legal requirements, and "Advertising positions internally, locally, nationally and internationally in that order" is by no means an invariable practice: many companies go immediately to a national or world posting via their own web sites or a recruiting firm, and do no separate internal or local advertising of positions.

Answer 4

In france, there is no general obligation of fairness in hiring. Only a specific list of criteria constitute illegal discrimination, such as physical appearance, gender, religion, political opinion or activity, etc. This also includes indirect discrimination: discrimination on other criteria that are not directly relevant on their own, and are strongly correlated with illegal criteria. Any such discrimination must be based on a legitimate objective and must be a proportionate constraint to reach this objective; for example, gender-based discrimination is legal in a very small number of professions (actor, mannequin, model); age-based discriminations can be based on safety considerations; refusing to hire a handicapped person because they have been declared medically inapt for a job is legal...

An additional consideration that indirectly limits to hiring discrimination is that an employer may only ask candidates about information that is relevant to the candidate's capacity for the job. So some discrimination may be, in principle, legally impossible because the employer could not know. However, if the employer does find out anyway, discrimination on criteria that are irrelevant but not expressly illegal is legal.

Exclude internal applicants from consideration for jobs for which they have relevant qualifications

It is legal to favor internal candidates for a job, and it is legal to advertise a job without looking for internal candidates. (There is one case that may seem like an exception exception, which is that a company who wants to lay off workers because their current position is made redundant generally must offer them another position if possible. Thus, in this case, internal candidates do have precedence over external hiring. However, what would be illegal if the internal candidate is not given precedence is not the hiring, but the layoff.)

Once hired, conditions are stricter: salarial differences must have some objective basis, the contours of which are defined by complex jurisprudence. In principle, taking a candidate's salary negotiation into account in order to decide whether to hire or not is legal, but paying different hires a different salary based on their negotiation skill is not. Taking qualifications such as degrees into account is legal, even if the qualification is not an absolute requirement for the job, as long as it has some form of relevance.

Summarily hire members of the business owner's family

This is legal, since the law doesn't say otherwise. Discrimination based on marital status or family name is illegal, but choosing to hire a particular person based on their membership in a specific family isn't.

Exclude close family/marital relations of existing employees

Systematically rejecting spouses (or unmarried partners) of existing employees may be illegal due to the fact that discriminating based on marital status is illegal. I don't know what the jurisprudence is. If the employer needs to ask, this likely falls under the proscribed questions.

Hire non-local (here defined as those who can commute to work from their existing home) candidates in preference to local ones similarly qualified

Specifically hiring non-local candidates in preference to local ones is illegal. But so is specifically hiring local candidates in preference to non-local ones. The place of residence is an illegal discrimination criterion.

Hire foreigners where they have suitable work permits

Again, specifically hiring foreigners would be just as legal, or just as illegal, as specifically refusing to hire foreigners. In addition to the place of residence, the origin is an illegal discrimination criterion.

This is specifically about discrimination based on nationality, where the candidate is already authorized to work in France. If the candidate needs to obtain a work permit, this work permit needs to be authorized, and in many cases, this will require an assessment that no EU/EEA national could be found.

All of this is about hiring in the private sector. The civil service has its own, much stricter rules. The general rule in the civil service is that recruitment is by competitive examination.

Answer 5

I can't speak for other parts of the western hemisphere but in Great Britain (most of which is west of the Greenwich Meridian) there are prohibitions (in the employment field) on both direct and indirect discrimination in relation to a "protected characteristic".

An example of direct discrimination would be if you required an employee to be of a particular religion. There are some common sense exceptions where this is allowed (e.g. it is allowed to specify that a Catholic chaplain in a university or hospital has to be a Catholic) but most direct discrimination is prohibited.

An example of indirect discrimination would be requiring employees to be at least 6 feet tall, which would mean that the percentage of women who were eligible was considerably less than the percentage of men who were eligible. The thing about indirect discrimination is that is is allowed if it is a "proportionate means of achieving a legitimate aim".

If challenged (by an unsuccessful applicant or potential applicant) it is up to the employer to identify and prove the legitimate aim and that the means was proportionate in the circumstances.

So, whilst there is no general obligation as such to adopt fair recruitment practices, an employer who does not risks at least inadvertently committing indirect discrimination which they may then be unable to show was a "proportionate means of achieving a legitimate aim".

So, just as an example, if an employer simply offers a job to a member of their own family without considering others outside the family, in theory a potential applicant who happens to be of a different ethnicity from the employer and his family could claim indirect discrimination.

Similarly some of the other examples in the question could constitute indirect discrimination depending on the circumstances.

Hiring foreigners as a specific objective (e.g. "French Chef required") would be direct discrimination.