Dear Atty., Did I Discriminate During A Job Interview?

Dear Attorney:

I own a business located here in Madison. A couple of weeks ago I was interviewing a candidate for a customer service position. A couple of minutes into the interview, the candidate went off on a rant about how she is an atheist and started questioning my company’s practices regarding time off for Good Friday and Christmas. She went on and on about how supporting time off for these holidays discriminates against atheists. Seriously, she would not shut up about it. I ended up not hiring her because, frankly, I thought her behavior in the interview was odd, to say the least. I could not envision her interacting with my customers as a customer service representative. A couple of days ago I received a Complaint from the Madison Equal Opportunities Commission alleging that I discriminated against this woman for not hiring her because she is an atheist. For the love of God, please tell me that there is no such thing as discrimination based on atheism.

Signed,

Keeping the Faith

Dear Faith:

Sorry to have to break this to you, but in Madison there is.

The Law:
If your business is located within the geographic boundaries of the City of Madison you are covered by the Madison Equal Opportunities Ordinance. The Ordinance is enforced by the Madison Equal Opportunities Commission (“MEOC”). So, if you are a Madison employer you have the pleasure (sarcasm) of being covered by three sets of discrimination laws: federal law, state law and the Madison Ordinance.

Among those of us who practice in the area of employment law, the MEOC has the reputation of being extremely pro-employee. The Madison Ordinance contains protected classifications that do not exist under federal or state laws. To be honest, some of these protected classifications seem a bit “out there.”  Here are some examples:

Atheism:
The Ordinance does, indeed, protect individuals from discrimination based on their status as being atheists. The apparent logic behind this is that, if religion is covered under the discrimination laws, the status of not believing in an organized religion also should be covered.

Homelessness:
The Ordinance protects discrimination against individuals who are homeless. Homeless individuals may have no address to put on an employment application or the address may be that of a homeless shelter. This may cause some employers to be reluctant to hire these people. The Ordinance protects them from such discrimination.

Unemployment Status:
The Ordinance prohibits employers from discriminating against individuals based on their status of being unemployed (the Ordinance does, however, allow employers to inquire into or consider the facts or circumstances that led to the applicant’s unemployment).

Physical Appearance:
Under the Ordinance, this means the “outward appearance of any person, irrespective of sex, with regard to hairstyle, beards, manner of dress, weight, height, facial features, or other aspects of appearance.”  So, when that clean‑cut kid that you hired shows up for his first day of work sporting ear gauges, a nose ring and tongue stud you may not be able to do anything about it.

Social Security Number:
I’m not making this one up. The Ordinance provides that an employer cannot discriminate against a person who “declines to disclose their social security number when such disclosure is not compelled by state or federal law.”  Many employers do pre‑employment background checks that aren’t necessarily required by state or federal law. Often times, the individual’s social security number is necessary to perform a background check. Under the Ordinance, an employer cannot take adverse action against an individual who refuses to provide their social security number as part of the background check.

As you can see, the Madison Ordinance covers many classifications that are not covered by other discrimination laws. Here is the long list of protected classes which currently are protected by the ordinance: atheism, sex, race, religion, color, national origin or ancestry, citizenship status, age, handicap/disability, marital status, source of income, arrest record, conviction record, credit history, military discharge status, physical appearance, sexual orientation, gender identity, political beliefs, familial, student and domestic partner status, receipt of rental assistance, social security number disclosure and unemployment status.

Many Madison employers do not even know that the Madison Ordinance exists. Now you do. But, there is no reason to lose faith, Faith. Compliance with the Ordinance is pretty simple once you know what it actually covers.

Signed,
Attorney

The “Dear Atty.” column is aimed at answering employers’ legal questions that surround issues in human resources. Attorney Pete Albrecht of Albrecht Backer Labor & Employment Law, S.C. welcomes you to submit questions here for future editions of “Dear Atty.”

If you would like additional information about this topic, please contact Pete Albrecht. He is the president and a shareholder at Albrecht Backer Labor and Employment Law. Pete has represented employers for over 28 years and his law office is located in Madison, Wisconsin.

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