Legal Employment Discrimination

There’s always a lot of talk about employment discrimination, but there are some situations in which employers can legally discriminate during the hiring process. Depending on the state, these 8 types of discrimination could be legal:

  1. Bankruptcy

In the Bankruptcy Code, it is stated “No private may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such a debtor or bankrupt…” However, many courts have decided this provision doesn’t apply to potential employers. A person may be denied employment due to bankruptcy according to the 3rd, 5th, and 11th Circuit Courts of appeal.

  1. Political Views

Not all states have laws prohibiting discrimination based on political affiliation. This is primarily in relation to free speech of political affiliation. To learn more about free speech rights in regards to political standing, read one of our previous blog posts.

  1. Favoritism

Discrimination against an employee because of their personality is legal. However, if an employer is showing favoritism because of race, age, sex, religion, national origin, disability, pregnancy, color, or genetic information, it is considered unlawful discrimination. Employers can also react negatively against an employee legally for complaining of favoritism, but not if the employee is complaining about actual discrimination.

  1. Nepotism

Hiring relatives is not illegal in the private sector. On a government level it becomes more complicated due to laws about conflict of interest.

  1. Appearance

Few areas have prohibitions against appearance discrimination. There are also no federal laws against the practice. If women are held to appearance standards in a workplace and men are not, that could be considered illegal discrimination. If someone just doesn’t want to hire beautiful people, it’s probably not going to be considered illegal.

  1. Credit History

In most states, employers can refuse to hire someone because of bad credit. Some states have passed laws against using poor credit history as the primary deciding factor when hiring. Employers opting to run credit checks must comply with the Fair Credit Reporting Act.

  1. Weight

Again, there are a few states or municipalities with limitations on weight discrimination. Morbidly obese employees are likely covered under disability discrimination laws. In addition, if females are held to a different standard than males or vice versa regarding weight it could be considered sex discrimination. Employees requiring medical treatment for a condition related to weight might also be protected for the days they miss work under the Family Medical Leave Act.

  1. Unemployment

There are many companies that considered unemployment to be a factor that automatically disqualifies applicants. This is legal, and quite common. A few states have passed laws against this practice, while others have tried and failed.

Employment cases are often unique and each case will have individual components impacting the final decision on whether or not the discrimination is legal.  Companies should be aware of discrimination laws to avoid legal issues with potential employees. InnovaCounsel attorneys have handled hiring, termination, and discrimination issues for their clients in the past and as in-house counsel they are available to answer questions as they arise. 


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