Beware These 5 (Perfectly Legal) Discriminatory Hiring Practices

Admit it, Bitch Nation: you missed us and our relentless griping about labor rights during our two-week summer hiatus. Well cheer up, people, because the Bitches are BACK (and still griping about labor rights)!

Today’s topic: discriminatory hiring practices.

One of our most popular articles to date is our list of illegal job interview questions. In that post, we explained how how there are laws in place to mitigate discriminatory hiring practices. An employer can’t ask a job candidate’s age, for example, to avoid ageism when hiring.

If you’re on the job hunt, you should familiarize yourself with the questions a potential employer can’t ask you. Know your rights lest you unwittingly allow an employer to use your personal demographics (rather than your job qualifications) to exclude you from a job opportunity.

Yet despite all the things an employer can’t legally ask in a job interview… some weaselly fuckers still find ways to introduce bias into their hiring practices. In fact, a lot that can happen during job applications and interviews that probably should be illegal… but isn’t.

Let’s go over some discriminatory hiring practices that are somehow still legal. Y’know, before we get to the inevitable pro-labor call to action. ¡Viva la revolución, comrades!

1. Credit checks

It’s not bad enough that a shitty credit history and poor credit score can keep you out of housing or a desperately needed loan. It can also keep you out of a job.

That’s right: It is entirely legal for a potential employer to require a credit check as part of their hiring process.

Some employers try to justify this discriminatory hiring practice. They think a credit check is a good way to measure a job candidate’s “trustworthiness and reliability.” Because no trustworthy or reliable person ever missed a credit card payment, amirite?

Credit reports and credit scores, as an institution, were invented to show banks and lenders how capable a person is of paying their debts. That is their only purpose—they’re not a substitute for a Myers Briggs type or a job placement exam.

How this is a discriminatory hiring practice

According to psychologists at the University of New Mexico, credit checks actually introduce racial discrimination into the hiring process. This is because racial minorities tend to have lower credit scores.

And why is that? The premise “brown people are just naturally worse at money” is inherently racist. So we can assume, therefore, that credit scores are themselves a racially biased system.

So including a credit check in the hiring process is basically like…

This is definitely one of those discriminatory hiring practices, but is it legal? Technically no...

Even if credit scores aren’t racist… your credit score is not your employer’s business! Just as what you do with your uterus is between you and your doctor, so your credit score should be a private matter between you and your bank.

A lot of people have poor credit scores due to past mistakes and misfortunes. That shit stays on a credit report for years! And the snowballing effect of bad credit often makes it very difficult to repair credit once it’s broken. (You get turned down for financial assistance and opportunities because of bad credit, so you sink further into poverty, debt, and bad credit, preventing you from accessing financial assistance and opportunities.)

A divorce wrecking your credit score should have no bearing on your candidacy during the hiring process. Signing up for a predatory store credit card when you were young and ignorant about finances should not prevent you from getting a job.

A notable proponent of this most blatant of discriminatory hiring practices is the financial industry’s own Voldemort Dave Ramsey. But then, he also famously asks to speak to interviewees’ spouses before hiring them. So he’s not exactly concerned with ethical hiring practices.

2. Asking about salary history

Sometimes employers will ask job candidates about their salary history. “What did you make at your previous company?” is a bold-faced way of saying “Tell us how much money you’re used to making so we can low-ball your offer and get you for cheap.”

In an ideal world, employers would include a salary range or hourly wage in a job description. It would avoid the awkward, discriminatory stand-off in which both parties go “No YOU say a number first.” It would also save a lot of time! Candidates would forego applying for jobs they can’t afford to take. And employers wouldn’t waste time interviewing someone they can’t afford to hire.

Yet instead we live in a world in which, unless legally obligated by their state government, employers are deliberately opaque about compensation in job descriptions. Their goal is to save money on a good employee, and they accomplish this through subterfuge and straight-up discriminatory hiring practices.

This hiring practice is so discriminatory it’s literally been outlawed in several states. And with any luck, it’ll soon be outlawed on the federal level! But for now, it’s still legal in many places, and that means job candidates have to do a careful dance to avoid answering.

How this is a discriminatory hiring practice

Studies show that asking about salary history perpetuates the gender and racial pay gaps. Women and people of color tend to be paid lower than their male and white counterparts. This is due to a variety of factors (all of which are, y’know, discriminatory stuff we should collectively be working on as a society). So if employers base salary offers on candidates’ previous, unfairly low salaries… they stay underpaid even when job hopping.

There are very few ways an individual can singlehandedly smash the patriarchy and dismantle systems of oppression. But personally, when I see a job description that doesn’t include a salary range, or meet an employer who asks about salary history in the job interview… I send them my favorite article from Nonprofit AF: When you don’t disclose salary range on a job posting, a unicorn loses its wings.

3. Asking about criminal history

Employers can legally ask if a job candidate has ever been convicted of a crime. In fact, they can ask about any felony or misdemeanor convictions as well as arrests that didn’t lead to a conviction. No matter the crime and no matter how long ago the conviction occurred.

Many employers even have blanket policies about not hiring anyone with a criminal history. Others bar only “violent crime” offenders from employment. Which is… obviously discriminatory against ex-convicts.

Some states are slowly passing “ban-the-box” laws that require employers to remove questions about criminal history from the hiring process. These laws are meant to protect ex-convicts from automatic disqualification during the hiring process.

And frankly, these laws are desperately needed. People with criminal histories represent a disproportionately huge percentage of the chronically unemployed and under-employed.

How this is a discriminatory hiring practice

“Good. I don’t want to work with cRiMiNaLs anyway,” is what an asshole would say.

The United States has the highest incarceration rate of any country in the world. We lock up people left and right, through a criminal justice system that is in itself often hella discriminatory.

One of the best books on our modern criminal justice system I’ve ever read is Michelle Alexander’s The New Jim Crow. In it, Alexander explains how law enforcement and the courts disproportionately target and punish black and brown Americans for harsh punishment. This system has led to a prison population that is disproportionately Black and Latino. And when those convicts serve their sentences and are released from prison… they face the hurdle of employers who want nothing to do with an ex-convict, no matter their qualifications and the nature of their crimes.

Alexander also describes the War on Drugs and mandatory minimum sentences. Many convicts are locked up for minor offenses like possession of marijuana (which, ironically, is now legal in many states). Due to mandatory minimum sentences, these otherwise average citizens are saddled with criminal records. And those records can permanently affect their employment for the rest of their lives.

On top of all that, studies show that many crimes are born of desperation and poverty. Removing employment opportunities from an ex-convict who made bad decisions because they were desperate for money and opportunities simply perpetuates the cycle of crime and poverty. Recidivism (convicts re-offending after they’ve been released) is tied to unemployment in a big way.

4. Asking current employment status

Being unemployed sucks in one more new and fascinating way: it makes it harder to get hired.

There is definitely a stigma against unemployed people. Counterintuitively, research shows that a leading reason unemployed people can’t get hired is because they… don’t have jobs??? This stigma would be easy for unemployed people to get over, if only it was illegal for hiring managers to ask about current employment status. But of course it’s not.

You’d think that only a long period of unemployment would affect your hireability. But you’d be wrong. The stigma against the unemployed in the hiring process starts almost immediately. The only way to avoid the stain of unemployment is to make sure your resume is airtight and gapless. Fill them gaps with higher learning and volunteering! Don’t allow even the illusion of free time to creep in there, lest you fall prey to this most insidious of discriminatory hiring practices!

How this is a discriminatory hiring practice

Even the most qualified job candidates can have perfectly legit reasons for a gap on their resume.

You know who’s regularly unemployed for long periods of time? Moms. Moms who leave the workforce to have and raise babies. The motherhood penalty is a big old resume gap. And for some reason “bringing an entire new human life into the world” is not a desirable career-building activity to employers. File this one under Reasons the Gender Wage Gap Persists.

Another class of people searching for jobs during unemployment? Recent graduates. These young’uns just went from full-time students to full-time unemployed. It might not be ageism on paper, but it is in practice.

Really though, anyone can be laid off, no matter their gender, race, age, or background. Companies go bankrupt, they eliminate positions, and a catastrophic global plague can tank entire sectors of industry. Which is why it’s baffling that these discriminatory hiring practices persist, and also why it’s difficult to fight.

5. Requiring sponsorship and immigration status

This last of our discriminatory hiring practices is tricky. It’s illegal to discriminate against people based on their national origin or immigration status in the hiring process. But it can be damn easy for employers to maintain the illusion of unbiased hiring while asking questions that put immigrants and foreign nationals at a disadvantage.

Employers are allowed to ask the carefully phrased question, “Are you authorized to work lawfully in the United States?” Nice, right? It doesn’t ask if you’re a citizen, doesn’t ask if you have a Green Card. And it’s important to ask, as there can be strong legal penalties for hiring undocumented immigrants and others not legally authorized to work in this country.

The problem is that employers are also allowed to ask “Will you now or in the future require sponsorship to lawfully work in the United States?” And that question makes it a lot harder to hide a job candidate’s immigration status.

How this is a discriminatory hiring practice

It’s illegal to ask a job candidate where they’re from in the hiring process. But c’mon… if someone tells you they need sponsorship to work in this country, you might as well be asking the illegal question anyway.

In recent years, it has become absurdly difficult for certain nationalities to enter the United States and work here legally. The last couple presidential administrations have curtailed the admittance of refugees and cracked down on deportations. (See? We can be bipartisan!)

Top that with discriminatory hiring practices that give employers an excuse to avoid hiring immigrants because they don’t want to deal with the legal paperwork. What you end up with is a job market that is openly and legally hostile to immigrants.

At the end of the day, employers should be judging your job candidacy on your job qualifications, not your demographics. You should go in there confident, capable, and ready to slay… not worried about how you’ll answer the salary history question or whether they’ll find out you were arrested at 21 for drunken disorderliness.

Here’s more of our impeccable job interview advice:

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10 thoughts to “Beware These 5 (Perfectly Legal) Discriminatory Hiring Practices”

  1. I would like to add “Having the ability to lift 10 or more pounds and stand for long periods of time” listed as a requirement in computer-based office job posts. When this was brought to my attention I started seeing it in almost every job post for my field. I’m a graphic designer, and in my long-ass experience, I’m chained to my desk and lucky if I can sneak in a 10 minute walk. And the rare times I’ve needed to lift something heavy, no one cared if I asked for help.

    There’s absolutely no reason a person NEEDS to be able to stand or lift heavy objects to do most graphic design jobs.

    1. YES. I can’t believe I missed this one. That is incredibly ableist, and clearly included in applications just to disqualify disabled candidates.

  2. Re number two: I once got a job offer from a company that wanted me to commit to taking the job before they showed me the pay & other comp/benefits! I luckily had a competing offer (with an actual number!) and was able to say no. Their loss! Another time a company offered me $3k less than what I had asked for. I flat out said, “look, you’re a giant corporation, you can afford to pay me that other $3k.” And sure enough, they did! Later as a hiring manager I was able to pay it forward when the recruiter tried to make my candidate “ask” for a signing bonus. I told him to just offer it, for goodness sakes, this candidate will save us so much more money working here than that bonus was! Know what you’re worth and don’t be afraid to ask for more money!!

    1. Susanna, the “commit to a black box offer” situation happened to me once too. What a ridiculous practice. Like you, I was fortunate enough to have competing (and very competitive) offers and told them that in the absence of further information, my answer is a big N-O.

      1. How is it even legal??? I didn’t come across it in my research for this article but now I wish I had. Imagine not having that competing offer and being desperate enough to accept…

    2. That’s fucking bananas. Penny-pinching in the hiring process is just absurd when you consider how much value a person brings to the company.
      And this should go without saying, but for anyone who needs to hear it: NEVER TAKE A JOB WITHOUT KNOWING THE COMPENSATION.

  3. Another: Asking job candidates if they have a drivers license — when the job has no explicit driving/car related duties — can be a crappy, ableist, classist way to hint that employees need a reliable way to get to work. I believe asking this is finally illegal in California but not sure about anywhere else.

  4. I hope this is a parody because asking if you’re legally allowed to work in the country is just the company following the law.

    If you get asked what you earned previously – LIE. Google the high range of salaries for your profession in your (or adjacent) areas and tell them the highest you find. Should they come back and say it’s beyond their budget, you get to ask what the budget is. Then they have to justify why they should pay you less than your previous job.

    Things to remember is that companies always have some sort of mission statement or publicly stated aspiration to be “excellent” (or something similar) at what they do. If their budget is too low, say that you understand that, that you really enjoyed the interview and think you would be happy and excited to work with them. So to make that happen, you’re willing to work with them on a compensation package that could make it happen. That can be PTO, company car, signing bonus, etc. You get to be creative here.

    Keep in mind that if successful you could be the top earner in that department and will likely be let go first when hard times hit.

    As for gaps on your resume – LIE. You can’t be unemployed on your resume. You can have worked freelance for friends and their companies. Make sure your resume reflects that.

    Credit checks and criminal history for non-security clearance jobs are bullshit, but if you want to get rich, don’t put yourself in a situation where any of that becomes an issue.

    Speaking of getting rich, you need to start a business to do so. You can’t make millions from employment. It doesn’t work. Instead of negotiating hard for an extra $5k and putting a financial target on your back in your department, take a job that gives you the most free time (minimize commute!) and make sure you spend every waking moment on creating online income. Obviously you want an office job (ideally work from home) so you can work on your business during work hours.

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