Discriminatory Hiring Claims
I think I wasn't hired because I'm a woman, how do I prove it? Though there have been few suits filed under the Arizona Civil Rights Act (ACRA) for discriminatory hiring practices, ACRA is by-enlarge identical to Title VII. As such, federal Title VII case law is persuasive in interpreting the ACRA. To prove a claim for discriminatory hiring, you must show all of the following:(1) that you belong to a protected group; (2) that you were qualified and applied for a job for which the employer was seeking applicants; (3) that despite your qualifications, you were rejected; and(4) that after your rejection, the position remained open and the employer continued to seek male applicants of your qualifications. The interviewer asked me some very personal questions. Is that legal? According to the Equal Employment Opportunity Commission (EEOC), interview questions that express, directly or indirectly, any limitation, specification, or discrimination as to sex is unlawful unless it is based on a bona fide occupational qualification (BFOQ). (A BFOQ is an employment qualification that may discriminate against women, but is legally legitimate as long as it is reasonably necessary to the operation of the particular business.) However, an employer may ask you to choose from among the titles Mr., Mrs., or Miss, as long as the inquiry is made in good faith and for a nondiscriminatory purpose. The interviewer stated that his customers would prefer to see a man to do this job rather than a woman. Is this a legal reason not to hire me? No. If you have the same qualifications as a man who is interviewing for the same job, customer preference by itself is not a legal reason not to hire you. The employer must show that sex is a Bona Fide Occupational Qualification (BFOQ) in order to hire a man instead of you. If an employer can show that "all or substantially all" women cannot adequately perform the essence of the job, and that no reasonable alternatives exist that could accomplish the employer's purpose or needs with a less discriminatory impact, then a BFOQ might exist. In doing this, your employer could prove that women cannot safely or efficiently perform essential job duties to bar women from obtaining a position. Must I prove that I didn't get the job because of my sex, and not my qualifications? If so how? Yes, you must show that you didn't get the job because you are a woman. You can initially show this by presenting evidence that you applied for a position that you were qualified for and that after you were rejected the position remained open. An inference of discrimination can be drawn from the fact that a male was hired instead of you or that after you were denied for the position, the employer continued to seek applicants with similar qualifications. If you were denied the job because of a hiring policy that appears to be neutral, but in fact excludes women, you may also have a claim for disparate impact. What could my employer do to deny my allegations, and how do I respond to their denials? An employer may defend against your discriminatory hiring claim by presenting "clear and convincing" evidence that you did not meet the employer's objective, nondiscriminatory requirements for the position you were seeking, or that there were other, more qualified applicants. If you are able to show that you were qualified and the employer still hired a man, then the employer must show that less discriminatory methods of hiring had been attempted and that hiring alternatives were not available. Does it matter when the discrimination occurred? Under the ACRA, you must file a claim with the Arizona Civil Rights Division (ACRD) or the EEOC within 180 days of the discrimination. Keep in mind, you cannot pursue an employment discrimination case through the state or federal courts independently; you must go through the ACRD or the EEOC, which is the federal agency in charge of employment discrimination claims. For more information see How to File a Claim. What options do I have if I my employer has fewer than 15 employees? If your employer has less than 15 employees you will not be able to bring a claim for discriminatory hiring policies under ACRA. However, you can still try to make change in the work place through alternative avenues such as talking to your employer or starting a WAGE club.What WAGE Clubs Do. For more information see What Does the Law Say. If I prove my hiring discrimination claim, what kind of remedies am I entitled to? You will be entitled to equitable relief, which is relief intended to reverse the harm you have suffered and restore you to the position you were in before the discrimination took place. You may be able to recover back pay to compensate you for lost earnings, front pay to compensate for a pay differential resulting from discrimination, injunctive relief to correct your employer's discriminatory practices, or reinstatement to any position that you lost as a result of discrimination.For more information see What Can I Get If I Win. Return to StatesReturn to Types of DiscriminationReturn to Arizona Law PageLegal Glossary
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