Discrimination in Hiring: When You Don’t Get the Job
Employment discrimination does not begin at the first day of work. It can begin at the application, the interview, or the offer — and California law reaches employers who make hiring decisions based on characteristics the law protects.
An applicant applies for a job they are qualified for. They interview well. And then — nothing. The position goes to someone else, or the employer stops responding, or the process ends with a vague explanation that does not match what the applicant observed. The applicant suspects the reason is not qualifications but something else: their age, their race, their disability, their pregnancy, their accent, their name.
Failure-to-hire claims are among the most difficult employment discrimination cases to prove, because the applicant typically has less access to the employer’s internal decision-making than a current or former employee would. But difficulty is not impossibility, and California law provides the same protections against discriminatory hiring that it provides against discriminatory firing.
What the law prohibits
FEHA makes it unlawful for an employer to refuse to hire a person because of their race, sex, age, disability, sexual orientation, gender identity, religion, national origin, pregnancy, marital status, military or veteran status, or any other protected characteristic. Government Code section 12940, subdivision (a). The prohibition applies to every stage of the hiring process: the job posting, the application review, the interview, the selection decision, and the offer.
An employer violates the statute when a protected characteristic is a substantial motivating factor in the decision not to hire the applicant. The employer need not announce the discriminatory motive. It need not even be conscious of it. What matters is whether the characteristic played a meaningful role in the decision.
How hiring discrimination manifests
Hiring discrimination operates through mechanisms that are often invisible to the applicant, but that leave detectable traces.
Screening by name or appearance. Studies have consistently demonstrated that applicants with names associated with certain racial or ethnic backgrounds receive fewer callbacks than applicants with identical qualifications and names associated with other backgrounds. An employer that screens resumes and systematically advances applicants whose names suggest one demographic profile over another is engaging in discrimination, whether or not the screener is aware of the bias.
Interview conduct. Questions about an applicant’s age (“when did you graduate?”), family status (“do you plan to have children?”), national origin (“where are you from originally?”), disability (“do you have any health conditions we should know about?”), or religion (“would you be available to work Saturdays?”) are not per se unlawful to ask — but they are strong evidence of discriminatory intent when the applicant is not hired. FEHA regulations identify categories of questions that are presumptively discriminatory when they relate to protected characteristics and are used in the hiring process.
Age-coded job descriptions. Postings that seek “digital natives,” “recent graduates,” “high-energy self-starters,” or candidates with “zero to three years of experience” for roles that do not require limited experience may be evidence of age discrimination — particularly when the posted qualifications exclude experienced workers who could perform the job.
Failure to accommodate during the hiring process. An applicant with a disability who needs a reasonable accommodation to participate in the application or interview process — a sign language interpreter, a modified assessment, a wheelchair-accessible interview location — is entitled to that accommodation under FEHA. An employer that refuses to provide it, or that withdraws the application because of the accommodation request, has violated the statute.
Withdrawal of an offer after disclosure. An applicant receives a conditional offer of employment. During the post-offer process — which may include a medical examination, a background check, or the completion of additional paperwork — the applicant discloses a pregnancy, a disability, a religious practice that requires accommodation, or another protected characteristic. The offer is withdrawn, with an explanation that does not withstand scrutiny. The timing between the disclosure and the withdrawal is the case.
Proving a failure-to-hire claim
The burden-shifting framework applies to hiring claims just as it does to termination claims. The applicant establishes a prima facie case by showing that they belong to a protected class, that they were qualified for the position, that they were not hired, and that the circumstances suggest a discriminatory motive — typically, that the position remained open or was filled by someone outside the protected class with comparable or lesser qualifications.
The employer then offers a legitimate, non-discriminatory reason for the decision. The applicant can show that the reason is pretextual — that it does not hold up under examination, or that it is inconsistent with other evidence.
The challenge in hiring cases is access to information. A fired employee has years of performance reviews, internal communications, and comparative treatment to draw on. An applicant may have little more than the job posting, their own qualifications, and the outcome. Discovery — the process through which litigation compels the employer to produce internal documents — can reveal the decision-making process: who reviewed the applications, what criteria were applied, how different candidates were scored, what notes the interviewers made, and who was ultimately selected.
Statistical evidence can also be powerful. If an employer’s hiring data shows a pattern — a workforce that is significantly less diverse than the applicant pool, a history of selecting younger candidates over older ones, a consistent preference for applicants of a particular background — the pattern supports an inference that the individual hiring decision was not an isolated exercise of judgment but part of a broader discriminatory practice.
The Fair Chance Act
California’s Fair Chance Act, Labor Code section 432.9, addresses a specific form of hiring discrimination: the use of criminal history to exclude applicants from employment.
The statute prohibits most employers with five or more employees from inquiring about an applicant’s criminal history before making a conditional offer of employment. The employer may not include questions about criminal history on the application, may not conduct a background check before the conditional offer, and may not consider criminal history in making the initial hiring decision.
After a conditional offer has been made, the employer may conduct a criminal background check and may consider the results — but only through an individualized assessment that considers the nature and gravity of the offense, the time elapsed since the offense, and the nature of the job. If the employer intends to deny the position based on the criminal history, it must provide written notice to the applicant, including the specific conviction at issue, and allow the applicant at least five business days to respond before making a final decision.
The Fair Chance Act does not prohibit all consideration of criminal history. It regulates the timing and the process, ensuring that applicants are evaluated on their qualifications first and that criminal history is considered only in context, only after a conditional offer, and only with an opportunity for the applicant to respond.
What applicants can do
An applicant who suspects discriminatory hiring has several options.
File a complaint with the CRD. The administrative complaint process applies to failure-to-hire claims just as it does to termination claims. The applicant has three years from the date of the adverse hiring decision to file.
Document the process. Preserve the job posting, the application, any communications with the employer, notes from the interview, and any information about the person who was hired. If the interview included inappropriate questions about protected characteristics, note them as precisely as possible.
Request feedback. Some employers will provide feedback about why an applicant was not selected. The response — or the refusal to provide one — may be informative. An employer that offers a vague or shifting explanation for rejecting a highly qualified applicant is exhibiting the same pattern of pretext that appears in termination cases.
Failure-to-hire cases are harder to prove than termination cases, but they are not impossible — and the applicant who preserves evidence and seeks legal evaluation promptly is in the best position to determine whether the case is worth pursuing.
If you applied for a job you were qualified for and were not hired under circumstances that suggest a protected characteristic played a role — your age, your race, your disability, your pregnancy, your name — the law’s protections begin before the first day of work. Hiring discrimination is harder to see, but it is no less unlawful.
This article is general information about California law and is not legal advice. Every situation turns on its particular facts.