Discrimination Against a Job Candidate? Ask a Lawyer

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Discrimination Against a Job Candidate? Ask a Lawyer

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I work in HR and my boss asked me to recruit an executive assistant for him. He specifically mentioned he does not want a young, single female or his wife will get jealous. Isn’t this a form of workplace discrimination?

Yes and no. Yes, regarding gender and marital status, and no, as to age.

Legally, applicants must be selected based only on their ability to do the job, and not on other factors like ethnicity, gender or disability.

The exception to the rule is where there is a bona fide occupational qualification — a BFOQ — for a particular job. This means there is a legitimate reason to discriminate against a certain class fo people. For example, some courts have held that being female may be a BFOQ for prison guard jobs where one duty is to monitor the prisoners while bathing.

Now let’s examine your dilemma regarding your boss’s preferences for his assistant.

The California Fair Employment and Housing Act (FEHA) and Title VII prohibit discrimination on the basis of gender. Being male is certainly not a BFOQ for being an executive assistant, so excluding females for this job is illegal.

The FEHA also prohibits discrimination based on marital status. Being married is not a BFOQ, so excluding singletons is illegal.

The FEHA and the federal Age Discrimination in Employment Act prohibit discrimination against people over 40. However, neither of these Acts prohibit discrimination against people under 40.

Bottom line: you may legally choose an older applicant over younger ones, but cannot exclude any applicants from the job of executive assistant on the basis of gender or marital status.  A mature, experienced applicant might be just the person for this job.  

Amy Semmel is a partner with the firm Donfeld, Kelley & Rollman, www.LosAngelesEmploymentLaw.net, where her practice focuses on employment law.

The information discussed here is a general explanation of the law, and is not intended to serve as legal advice. Readers requiring legal advice regarding a specific situation should consult an employment attorney.


This article is from WorkingWorld.com