Can I Sue for Discrimination As a Job Applicant?

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Can I Sue for Discrimination As a Job Applicant

Maybe you already know that you have rights against discrimination in your workplace, but what about the discrimination you might encounter while job hunting? Are you asking, “Can I sue for discrimination as a job applicant?” The answer is yes, and you will likely need the help of a skilled attorney to make the legal actions you take worthwhile. At Smithey Law Group LLC, we are award-winning employment attorneys who can expertly expose the discriminatory practices of your prospective employers and hold them accountable.

When Is Discrimination Against a Job Applicant Unlawful?

There are many ways that employers break the law by discriminating against an employment candidate. Some of the tactics and motivations businesses, agencies, and organizations use in the hiring process are illegal only at certain stages of hiring. Other forms of and reasons for discrimination in hiring are illegal no matter when they occur.

Employer Behaviors That Are Illegal Only Before an Interview Occurs or an Offer Is Extended

When it comes to an initial job application, an employer generally cannot ask you about your criminal history. Also, the law prohibits an employer from asking about your health until you have been offered a position.

Prohibitions against asking about a job applicant’s criminal record

In February 2020, Maryland law began banning employers with 15 or more full-time employees from requiring a job candidate to disclose information about any encounters they have had with the criminal justice system. In Maryland, many employers cannot ask applicants whether they have had past criminal convictions, pleas, dispositions, or accusations.

However, this protection against questions about criminal history lasts only until the first in-person interview. If your first job interview is over the telephone or on video, it is an in-person interview in which an employer can ask about your criminal record.

There are a few circumstances that are exempt from this rule. Employers are allowed to include application questions about a candidate’s criminal record in the following situations:

  • If state or federal law requires the employer to ask the applicant about their criminal record during the application process;
  • If federal or state law authorizes the employer to ask the applicant about their criminal record during the application process; or
  • If the employer provides services to vulnerable adults or minors.

If you have submitted a job application that asked you about your criminal history, you gave an answer about your criminal history, and you were not offered the position or an interview, speak to a lawyer immediately. You may have the right to recover damages from a prospective employer.

Prohibitions against asking about a job applicant’s health

In a job posting for a rigorous position, you might see an employer state that it seeks an applicant who can lift 50 or more pounds or stand for hours at a time. While these criteria can be perfectly legal, that does not mean that a prospective employer can start digging into the status of your health on an application or during an interview.

The Americans with Disabilities Act (ADA) outlaws discrimination against an employee or job applicant because of their disability. When it comes to job candidates, the ADA prohibits an employer from doing the following:

  • Asking questions about an applicant’s medical health;
  • Requesting that an applicant take a medical examination;
  • Asking an applicant whether they have a disability; and
  • Asking an applicant about the extent or nature of their disability.

Before an employer extends a job offer, the only questions they can ask about a candidate’s health are whether the candidate can fulfill the requirements of the job and how they plan to fulfill those requirements.

After it offers you a position, a potential employer can require you to take a medical examination or answer certain medical questions. In general, an employer can ask you to take a medical examination only if it asks all new employees in the same position to undergo examinations. An employer can also ask for certain medical documentation if you request a reasonable accommodation for a disability or if the employer has reason to doubt your ability to safely and successfully perform a work task. This area of the law can get tricky, so you should consult an attorney as soon as discussions about your medical health show up in your job hunt.

Employer Behaviors That Are Illegal at Any Time During the Application Process

In general, an employer cannot use the following criteria to deny you a position or change the terms of an employment offer:

  • Race,
  • Religion,
  • Pregnancy,
  • National origin,
  • Marital status,
  • Sex,
  • Gender,
  • Sexual orientation,
  • Genetics,
  • Age (40 or older),
  • Disability,
  • Credit history, or
  • Color.

Pay close attention to subtle or obvious questions an application or interviewer asks you about the protected characteristics listed above. Keep copies of the applications you submit and take detailed notes about the questions you were asked so you can discuss your legal options with an attorney if a discrimination dispute arises.

There are some exceptions to the prohibitions against discrimination, and you should review them with an employment attorney. For instance, an employer can take a candidate’s credit history into consideration if state or federal law requires it or if the employer is in the business of providing certain financial services.

What If I Was Discriminated Against During a Job Interview or Application Process?

If a potential employer engages in unlawful, discriminatory behavior on a job application or in an interview, you can file a complaint with the government. For violations of state law, you can file a complaint with the Maryland Department of Labor. Violations of federal law can be handled by filing a complaint with the U.S. Equal Employment Opportunity Commission (EEOC). You can also file a civil lawsuit against a discriminatory employer. Depending on the legal action you choose, you might have as few as 180 days to file your complaint, so you should speak to an attorney right away.

If you are a job applicant suing for discrimination or filing a discrimination complaint, you have the potential to recover several types of legal relief, including:

  • Economic damages to compensate you for any financial losses you suffer due to the discrimination;
  • Non-economic damages to pay you for emotional harm caused by the discrimination;
  • Punitive damages to punish a prospective employer that behaves egregiously;
  • Injunctive relief that requires an employer to hire you or provide you with better terms of employment; and
  • Reimbursement for your legal expenses.

Our knowledgeable employment discrimination lawyers can maximize your recovery of each type of relief available in your claim.

Our Attorneys Can Protect You

Searching for new employment can be as demanding as a full-time job, and the least a potential employer can do is treat you fairly. If an employer does not respect your legal rights on an application or in an interview, contact Smithey Law Group. Our experienced attorneys are leaders in the employment law community, and our singular focus on resolving employment disputes makes us the best advocates for mistreated job candidates. If you need help, you can reach out to us online or call us today.

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Joyce Smithey, a seasoned employment and labor law attorney, has over 22 years of experience representing both employers and employees in Maryland and D.C. Her practice, rooted in a deep understanding of employment law, spans administrative hearings to federal litigation. Joyce's approach is comprehensive, focusing on protecting client interests while ensuring legal compliance. A Harvard graduate, her career began in Fortune 500 companies, transitioning to law after a degree from Boston University School of Law. Joyce's expertise is recognized by numerous awards, including Maryland’s Top 100 Women. At Smithey Law Group LLC, which she founded in 2018, Joyce continues to champion employment rights, drawing on her rich background in law and business.

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