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Compliant Recruitment Process

    Compliance is an increasingly important responsibility for a human resources professional or business owner. Many employment laws are put into place at the federal or state level to protect the rights of employees and job applicants. It is the responsibility of the employer to know these regulations and abide by them. Regarding recruitment, not all of these laws apply to every type and size of employer. Below is information on employment law related to recruitment and ways to stay in compliance.

    From XpertHR:

    The Illinois Department of Human Rights is responsible for administering the Illinois Human Rights Act (IHRA). The IHRA offers protection exceeding that provided under federal law.

    For instance, it recognizes a greater number of protected classes. The IHRA prohibits private employers with 15 or more employees, state and local employers and any entities with a public contract from discriminating on the basis of the following:

    • Sex;
    • Age (40 years of age or older);
    • Race;
    • Color;
    • Religion;
    • Arrest record;
    • Marital status;
    • Sexual orientation;
    • Citizenship status;
    • National origin;
    • Ancestry;
    • Unfavorable military discharge;
    • Retaliation;
    • Military status;
    • Sexual harassment;
    • Physical or mental handicap; and
    • Orders of protection.

    The IHRA provisions prohibiting sexual harassment and discrimination on the basis of an individual's physical or mental handicap apply to private employers with one or more employees (as opposed to 15 or more), state and local employers and entities with public contracts.

    Key Illinois requirements impacting recruiting and hiring are:

    Arrest Records and Erased or Sealed Criminal History

    A private employer may not base employment decisions on arrest records or erased criminal history information (e.g., records that have been expunged or sealed). An employer may consider that information if required to do so by law. For instance, law enforcement agencies, banks and securities firms may be legally obligated to consider arrest history for certain positions. In that case, the agency, firm or bank would not violate Illinois law by basing an employment decision on an employee's or applicant's prior arrest records.

    Ability Tests

    Using professionally developed ability tests as a condition for employment or continued employment is permissible as long as the test does not have a discriminatory effect or intent and is not a pretext for unlawful discrimination.

    Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

    The Equal Employment Opportunity Commission website provides prohibited practices as it relates to recuitment.

    Job Advertisements

    It is illegal for an employer to publish a job advertisement that shows a preference for or discourages someone from applying for a job because of his or her race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.

    For example, a help-wanted ad that seeks "females" or "recent college graduates" may discourage men and people over 40 from applying and may violate the law.

    Recruitment

    It is also illegal for an employer to recruit new employees in a way that discriminates against them because of their race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.

    For example, an employer's reliance on word-of-mouth recruitment by its mostly Hispanic work force may violate the law if the result is that almost all new hires are Hispanic.

    Application & Hiring

    It is illegal for an employer to discriminate against a job applicant because of his or her race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. For example, an employer may not refuse to give employment applications to people of a certain race.

    An employer may not base hiring decisions on stereotypes and assumptions about a person's race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.

    If an employer requires job applicants to take a test, the test must be necessary and related to the job and the employer may not exclude people of a particular race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, or individuals with disabilities. In addition, the employer may not use a test that excludes applicants age 40 or older if the test is not based on a reasonable factor other than age.

    If a job applicant with a disability needs an accommodation (such as a sign language interpreter) to apply for a job, the employer is required to provide the accommodation, so long as the accommodation does not cause the employer significant difficulty or expense.

    Job Referrals

    It is illegal for an employer, employment agency or union to take into account a person's race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information when making decisions about job referrals.

    Best Practices

    According to Lori Kleiman President of HR Topics, some of those trouble spots include not understanding at-will employment; issues around employee classification; misunderstanding federal, state and local anti-discrimination laws, ban-the-box laws, and credit check restrictions; negligent hiring issues; and not providing Americans with Disabilities Act accessibility when interviewing candidates.

    Areas of risk specific to recruiters and hiring managers include job descriptions, employment ads, interview questions, offer letters, I-9 audits and background checks, which are explored on this website.

    EEOC Preventing Discrimination Flier https://www.eeoc.gov/eeoc/publications/upload/small_business_english.pdf