Question:
What are nonprofits required to do/abide by regarding employment
discrimination in hiring practices? Are there any notable
exceptions for nonprofit organizations (due to mission, background,
and other primary components of the organization)?
Answer:
With very few exceptions, nonprofits, like all employers, are
required to abide by federal, state, and local human rights
laws—namely, Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act, and their state and city
counterparts. These laws cover hiring practices, including
recruiting, job advertising, interviewing, and job placement, and
prohibit discrimination on the basis of race, sex, national origin,
disability, or any other protected characteristic protected under
the relevant law. Employers should be aware that
discriminating against an applicant because she is pregnant is
discrimination "because of sex." It is also
extremely important that employers be mindful of the local laws at
issue, which often extend protections to additional people,
protecting characteristics such as sexual orientation or family
responsibilities, and which may have a lower threshold for
triggering employer coverage.
Prohibited discrimination in hiring can manifest in two ways:
disparate treatment and disparate impact. Nonprofit
employers, like any employer covered by the law, should take steps
to avoid, or remedy where necessary, discrimination in either
form. Disparate treatment involves decisions made because
of a protected characteristic. Employers should
absolutely refrain from hiring practices that are based, in whole
or in part, on one or more protected characteristics or in any way
indicate a preference for a certain religion, sex, race, national
origin, or other such characteristic protected under the law.
Title VII does provide a very limited exception in the disparate
treatment scenario, where the religion, sex, or national origin
(not race) is a bona fide occupational qualification for employment
("BFOQ"). However, the Equal Employment Opportunity
Commission ("EEOC") has explained that this exception is
intended to apply to, for example, an Italian restaurant hiring an
Italian chef over a chef of another national origin.
Disparate impact discrimination, on the other hand, refers to
hiring practices which, on their face appear neutral and
non-discriminatory, but which have a particularly negative impact
on a certain group of applicants. For example, an
employer's background check process or other applicant
screening may be evenly applied to all applicants, irrespective of
race or gender, but it may have the effect of screening out women
(or at least have a disproportionately negative effect on them as
opposed to men).
Additional considerations for employers include: (a) the ADA's
prohibitions on certain pre-employment inquiries and exams that
inquire into whether an applicant is disabled or the nature or
severity of an applicant's disability; (b) the ADA's
requirements regarding accommodation issues for new (and existing)
employees; (c) Title VII's religious accommodation requirement;
and (d) recordkeeping requirements for applicant and new hire
information, as imposed by human rights laws and EEOC
regulations.
Exceptions Germane to Nonprofits
Certain Activities: Although certain state or
local laws prohibit discrimination on the basis of certain legal
non-work activities (e.g., sports, hobbies, etc.),
nonprofitmaking organizations may find that they fit into a common
exemption in these activities laws: discrimination or preference in
hiring may be permissible where the outside activity, although
legal, presents a material conflict of interest with the business
operations. For example, a gun-control organization may
choose not to hire someone known to be an avid collector of assault
weapons and still be in compliance with this type of law.
Religious Organizations: Title VII permits a
religious organization to make hiring decisions on the basis of an
individual's particular religion, whether or not the individual
plays a direct role in the organization's religious
activities. However, this exception is limited strictly to
the consideration of religion; the organization still cannot
discriminate on the basis of an applicant's race or
gender. Certain state or local laws have similar
exemptions. The question of what constitutes a religious
organization for this purpose is a fact-based inquiry.
Certain organizations have been considered to be
"religious" by the courts because of their mission and
activities, or separately, because of their ownership or
control.
Educational Institutions: Similarly, Title VII provides a
specific exemption for educational institutions, regarding the
hiring and employment of employees of a particular religion, where
the school or institution (a) is in whole or in substantial part,
owned, supported, controlled, or managed by a particular religion
or religious corporation, or (b) uses a curriculum directed toward
the propagation of a particular religion.
Indian Tribe: In very limited circumstances, where
the nonprofit organization qualifies as an "Indian tribe"
under the law, it may be exempt from Title VII coverage.
Click the link to view this article on GuideStar.
This article was originally published on GuideStar on April 14, 2014.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.