Q: What job requirements are legally discriminatory?

The shorthand way to analyze this is anything that isn’t objectively job related.

There’s a whole industry of consultants and lawyers out there who will tell you that in expensive ways. But it’s the only working definition you need. Call our office if you run into a questionable requirement.

Keep in mind that “discrimination” in a legal sense refers only to consideration of certain cultural, physical, and mental characteristics. Recruiters are paid to discriminate on the basis of job skills, personal qualifications, and experience.

Here are areas of inquiry and presentation to avoid:

• Race
• Religion
• Sex
• Age
• Physical Characteristics
• Psychological Attributes
• Marital Status
• Family and Personal Responsibilities

It’s easy to find some hypothetical way to trap yourself with marginally job-related requirements. But as a practical matter, you can’t consider them.

You’re as liable as the employer (jointly and severally) under virtually all federal and state laws. Only you’re not as able to defend yourself.

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To participate in future Q&As, email jeff@placementlaw.com. Keep in mind you should always consult with your own attorney. Nothing contained herein should be construed as legal advice. It is for your information only.

Q: I have a candidate who interviewed with my client and is going to receive an offer. She just told me that she is transgender and wants me to disclose that to the employer.

I told her that I never disclose pregnancies, disabilities, religion, sexual preference, etc. and that I would not disclose this. She has decided that she wants to tell this herself but she asked me how to approach the hiring manager (CEO) and wants me to send the employment verification to him that is in her male name first.

I haven’t done anything yet. I do not want to put myself in a liability situation and I do not want to put my client in one either if he chooses for any reason not to hire her. We haven’t done reference checks or anything yet. This is a small company of 27 employees that would be devastated by a law suit. Also, the hiring manager trusts me, and I feel bad not discussing this with him. Any advice?

The initial request for you to disclose transgender status of a candidate raises a unique legal question.

Referring (and hiring) based on sexual orientation or preference is clearly prohibited in federal and state equal employment opportunity laws. However, the Latin phrase volenti non fit injuria permeates our entire system of jurisprudence. It means “he (or she – or both) who consents cannot be injured.” (I tell you these things because tossing around buzzwords like that to your lawyer lowers your legal fees.)

In this case, your candidate is a member of a “protected class.” Therefore, his consent is vitiated (nullified). It would be like having a child consent to work for less than minimum wage. Since the child is the victim to be protected, he can’t consent legally to an illegal act against him.

Your candidate may insist — even threaten. You must stay back — way back. Your duty (if any) to your contingency-fee “client” must yield to your clear duty to obey the law.

Next month when it’s released, your candidate might want to pick up a copy of my new book, entitled Instant Interviews: 101 Ways to Get the Best Job of Your Life (Wiley). “Do” (Chapter) 81 is entitled “Disabling a Disability Instantly.” I use a take-no-prisoners approach that will work well for him. (Of course, transgender status is not a disability, but the disclosure technique is the same.)

Thanks for asking, and “consenting” to us sharing the reply to this great question.

Best of luck!
Jeff

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To participate in future Q&As, email jeff@placementlaw.com. Keep in mind you should always consult with your own attorney. Nothing contained herein should be construed as legal advice. It is for your information only.