Recruitment Discrimination Against LGBT People: What You Need To Know
Studies show that LGBT people often face discrimination when applying for a job, even though they may have all the relevant skills and experience necessary for the job. While discrimination on the grounds of race and gender is now outlawed in the United States, legislation against this type of discrimination is less advanced. If you think a recruiter discriminated against you because of your sexuality, learn more about the steps you may have to take and how you would need to prove your case.
How the law works
Discrimination laws in the United States continue to advance, but protection for LGBT people is not as robust as you might expect. Only some states have legislation that protects LGBT people in the workplace, and 31 American states don't outlaw this type of discrimination.
Campaigners have pressed the U.S Government to pass legislation to protect people against this type of discrimination for many years. Politicians have introduced different versions of the Employment Non-Discrimination Act (ENDA) in every Congress, except one since 1994, but lawmakers have still not passed this law.
Nonetheless, a landmark ruling in 2015 may have shifted the landscape. The U.S. Equal Employment Opportunity Commission concluded that discrimination against gay people breaks the 1964 Civil Rights Act. As such, if you believe that a recruiter or potential employer has discriminated against you, you may have a chance to take legal action.
About recruitment discrimination
Discrimination during the recruitment process can take several forms. In an extreme case, an employer may state that they only accept applications from straight people. Alternatively, a recruiter may ask about your sexual orientation on an application form. If you don't then get an interview, you may believe the recruiter discriminated against you. Similarly, if the recruiter turns you down after an interview, you may think that your sexual orientation drove the decision.
Recruitment discrimination can even occur based on a perception of your sexual orientation. A heterosexual applicant could suffer discrimination if the interviewer believed that he or she was gay. Indirect discrimination is also possible, as an employer may not make a job offer to somebody whose closest relative is gay.
Commonly, applicants choose not to make a complaint because they don't believe they can prove the allegation. In fairness, the process isn't always easy, but it's important to know what you might need to do.
How the burden of proof works
Under discrimination laws, the burden of proof falls to the plaintiff – the person making the allegation. You must prove that the employer discriminated against you, and the process follows three stages.
As part of stage one, you must present a prima facie case where you give enough evidence to challenge the recruiter's actions. For example, an application form that asks for your sexual orientation is circumstantial evidence of potential discrimination. An interviewer's hostile behavior is another example.
At the second stage, the defendant (the recruiter) must respond to offer a non-discriminatory reason that shows why the decision was fair. For example, he or she may simply say that you were rude during an interview. This stage is called satisfying the burden of production.
Finally, you must then give further evidence that proves the defendant intended to discriminate against you. The burden of persuasion must show that the defendant's explanation is not true and that he or she intended to discriminate against you. This is normally the most difficult part of the process.
Evidence of discrimination
A trained discrimination attorney can help you establish the evidence you need to prove your case. You should note that small details could often make a big difference.
Make detailed notes about the questions a recruiter asks you at interview. While the law may not ban certain types of question, the wording and context can help you show the recruiter's intent to discriminate. For example, you could argue that the recruiter doesn't have a good reason to ask if you are married or have children. His or her response to your answers could also indicate a pre-conception or prejudiced view.
You can ask a recruiter why you were unsuccessful. He or she has no legal obligation to respond, but any response is often useful. For example, if the recruiter says that you didn't have the required skills, your attorney can show that this isn't true, which can suggest that the recruiter had another motive.
Discrimination during the recruitment process is often hard to prove, but that doesn't mean you shouldn't try. You should always contact a trained civil rights attorney for help as soon as you think the discrimination has occurred.