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Illinois School Board Journal - ARCHIVES
May-June, 2006

In employment, some questions are illegal

Melinda Selbee, IASB general counsel, answers this issue's question.

Question: Which anti-discrimination laws apply when a school board is searching for a new superintendent?

Answer: Anti-discrimination laws - those prohibiting discrimination in employment on the basis of certain immutable characteristics and/or lifestyles - protect all applicants for school district employment regardless of the job being filled.

Occasionally boards reason that because a superintendent is such an important employee, they should select someone who will "fit" into the community. This might require that the candidate reflect the community's concept of what a leader looks like. Such thinking, however, is potentially dangerous if it eliminates candidates on the basis of things those applicants cannot change.

Many laws require school districts to provide equal employment opportunities to virtually all aspects of employment including hiring decisions. School officials must avoid asking applicants questions concerning any protected status because a rejected applicant may assume this information was used as hiring criteria.

Following is a short review of the characteristics and lifestyles that may not be considered when making hiring decisions.

Race and color. Many laws prohibit discrimination on the basis of race and color. Looking for a superintendent whose race matches that of the local community is very suspect. Also, school officials may not make employment decisions based on stereotypes about abilities or traits of individuals of certain races.

Creed and religion. School officials should not ask about an applicant's religion or religious practices. In addition, school officials must generally accommodate religious practices unless the burden on the district is substantial.

National origin, ancestry and citizenship status. These immutable characteristics are similar. Discrimination occurs when applicants are treated less favorably because they come from a particular place, because of ethnicity or accent, or because it is believed that the applicant has a particular ethnic background. State law prohibits discrimination on the basis of citizenship status, provided the individual is authorized to work in the United States.

Gender. In addition to keeping hiring practices gender-neutral, school officials may not pay someone of one gender less than the other gender for equal work. School districts are also prohibited from discriminating on the basis of pregnancy, childbirth or related medical conditions. Boards should not ask an applicant if she expects to start a family.

Sexual orientation. As of January 1, 2006, the Illinois Human Rights Act prohibits employment discrimination on the basis of "sexual orientation." Sexual orientation is defined as actual or perceived heterosexuality, homosexuality, bisexuality or gender-related identity.

Age. The laws prohibiting age discrimination in employment protect individuals who are at least 40 years old. A board obviously violates this law by stating in its candidate material that it is looking for someone less than 40 years of age. However, most situations are not this clear, such as when a board states that it prefers someone who is 10 or more years from retirement. Such preferences will receive significant scrutiny.

Marital status. This means an individual's legal status of being married, single, separated, divorced or widowed. This statutory definition does not encompass the identity of one's spouse. The Illinois Supreme Court has held that a policy prohibiting the hiring of the spouse of a current worker does not constitute marital status discrimination.

Arrest record. Illinois law prohibits employers from inquiring into or using an arrest record as a basis for refusing to hire an applicant. However, school officials may use conviction information.

Military status or unfavorable military discharge. State law defines "military status" as a person's status on active duty in the U.S. Armed Forces. "Unfavorable military discharge" does not include those characterized as RE-4 or "dishonorable." Federal law prohibits employers from discriminating or retaliating against any person for reasons related to past, present or future service in a "uniformed service."

Use of lawful products while not at work. State law prohibits discrimination based on use of lawful products (like alcohol and tobacco) off premises during non-working hours.

Filing a claim under the Workers' Compensation Act or Workers' Occupational Diseases Act. An employer may not ask, in an application
or otherwise, if an applicant has ever filed a claim under either of these acts.

Being a victim of domestic or sexual violence. A victim of domestic or sexual violence is protected from employment discrimination.

Physical or mental handicap or disability. School officials may not discriminate on the basis of an individual's disability or perceived disability if the individual is otherwise able to perform the essential functions of the job with reasonable accommodation. Instead of asking if the applicant has a disability that would interfere with job performance, school officials should ask: "Can you perform the functions of this job with or without reasonable accommodation?" Contrary to urban myth, applicants currently engaging in the illegal use of drugs are not protected.

Final thoughts

Most anti-discrimination laws also prohibit harassment on the basis of the covered immutable characteristics or lifestyles as well as retaliation for reporting discrimination or making a claim. In addition, these laws frequently require school districts to have a policy providing equal employment opportunities. A school board is well advised to double-check its policies and consult with its attorney before making an employment decision that might burden one of these immutable characteristics and/or lifestyles.

Relevant Laws

U.S. Constitution
Age Discrimination in Employment Act, 29 U.S.C. §621 et seq
Americans with Disabilities Act, 42 U.S.C. §§12111 et seq
Civil Rights Acts of 1866 and 1871, 42 U.S.C. §§1981 and 1983
Equal Employment Opportunities Act (Title VII), 42 U.S.C. §2000e.
Equal Pay Act, 29 U.S.C. §206(d)
Immigration Reform and Control Act of 1986, 8 U.S.C. §§1324(a) et seq
Pregnancy Discrimination Act, 42 U.S.C. §2000e(k)
Rehabilitation Act of 1973, 29 U.S.C. §791 et seq
Title IX of the Education Amendments, 20 U.S.C. §1681 et seq
Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. §§4301 et seq.
Illinois Constitution, Art. I, §§17, 18, and 19
Illinois Equal Pay Act of 2003, 820 ILCS 112/1 et seq
Illinois Human Rights Act, 775 ILCS 5/1-102
Religious Freedom Restoration Act, 775 ILCS 35/1 et seq
Right to Privacy in the Workplace Act, 820 ILCS 55/5
The School Code, 105 ILCS 5/10-22.4, 5/24-4
Victims' Economic Security and Safety Act, 820 ILCS 180/30
Boaden v. Dept. of Law Enforcement, 664 N.E.2d 61 (1996)

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