FAQ for Employers

FAQ about contract compliance has moved to: http://mn.gov/mdhr/compliance/faq.html

General FAQ about Employment Discrimination

Do some employees — such as those of a certain race or sex — have more protection than others?

Everyone in Minnesota has the same protection in employment under the Human Rights Act. Everyone has a race and a sex, for example, and if they are treated adversely because of their race, sex, or another protected characteristic, they can file a charge.

Can only employers be charged with employment discrimination?

No. Labor unions and employment agencies have the same responsibility not to discriminate based on a protected class characteristic.

If a company provides benefits to opposite-sex spouses of employees, is it required to extend those same benefits to same-sex married couples?

Yes, after August 1, 2013 in Minnesota same-sex marriage is legal and benefits must be extended equally to not engage in discrimination that is prohibited under the Minnesota Human Rights Act.

Are there exemptions to the law — are some employers allowed to base decisions based on protected characteristics?

The Minnesota Human Rights Act has certain exemptions. A religious organization can base an employment decision on a person's religion or sexual orientation — but only if religion or sexual orientation is a bona fide occupational qualification for a particular job. A family member (parent, grandparent, spouse, child, etc.) who hires another family member is exempt from the Act's provisions — with respect to that family member. An employer can have a seniority system that mandates different wages, vacations, etc., with respect to seniority. Mandatory retirement ages, although generally illegal, can be established for certain professions when required by or consistent with other state or federal laws. The Act recognizes certain other exemptions as well, the section on exemptions in employment is can be found on the Minnesota Office of Revisor of Statute's web site.

What kind of discrimination is alleged the most frequently?

Year after year, disability, sex, race and age make up the majority of employment discrimination charges filed with the Department of Human Rights.

Hiring / Pre-employment FAQ

What questions should employers NOT ask during job interviews?

Generally, an employer may not ask questions that will make the applicant give answers about his/her protected class. Protected classes covered by the Minnesota Human Rights Act include: race, color, creed, religion, national origin, sex (including pregnancy), marital status, disability, public assistance, age, sexual orientation and local human rights commission activity.

Interview questions should focus on education, training and skills that are required for the position. If the job requires specific needs for age, physical ability, or other things, then the employer may ask about those specific things, for example, "the job requires lifting up to 30 pounds several times a day, can you do this?"

Here are the kinds of questions to avoid:

  • Do you benefit from any social services? (public assistance)
  • You speak with an accent, where are you from? (National origin and/or race).
  • When did you graduate? (Age).
  • Do you have a disability? How did you become disabled? (Disability)
  • Are you married? What does your spouse do? What is your maiden name? How many children do you have/plan to have? (Marital status).
  • Are you pregnant? (pregnancy is covered under sex)
  • How will you manage child care if you accept this job? (pregnancy (sex)/marital status)
  • How well do you perform under stress? (Disability)
  • Are you on any medications? Do you have a medical condition? (Disability)
  • Are you a faithful Christian/Muslim/Jew/Hindi? (Religion)
  • Have you ever collected worker's compensation? (Disability)

More information about prohibited practices during the hiring process.

Pre-Employment Inquiries and Citizenship

Asking whether an applicant is a U.S. Citizen during a job interview is generally prohibited. The federal Immigration Reform and Control Act of 12986 (IRCA) makes it illegal for employers to discriminate based on a person's citizenship or immigration status during hiring, firing, recruitment or referral for a fee. More about IRCA on the EEOC web site.

Can an employer require an applicant to take a medical test before being hired?

To determine the person's capability to perform available employment, an employer may legally request or require a physical examination, which may include a medical history, provided all the following elements are met:

  • an offer of employment has been made, on the condition that the person meets the physical or mental requirements of the job (except: a law enforcement agency filling a peace officer position may require a psychological examination prior to a job offer);
  • the examination tests only for essential, job-related abilities;
  • the examination, except for Workers' Compensation Act-related exams, is required of all persons conditionally offered the same position, regardless of disability; and
  • the information obtained is collected and maintained separately and is treated as a confidential medical record, subject to limited access, for purposes enumerated at §363A.20, subd. 8.

Any person who is illegally required to provide health-related or other prohibited information is an aggrieved party. §363A.08, subd. 4(b)

Can an employer require non-medical tests during the application process?

Employers may administer non-medical, pre-employment tests to job applicants, without first making a conditional offer of employment, provided all the following elements are met:

  • the tests are required of all applicants for the same position;
  • the tests measure only essential, job-related abilities; and
  • the tests accurately measure aptitude or achievement, rather than reflecting an applicant's impaired sensory, manual, or speaking skills, except when those skills are the factors the tests are designed to measure.

Timing an applicant's performance of a job-related task would be a non-medical test; however, measuring an applicant's physiological state — such as blood pressure or heart rate — following a performance test, would likely constitute a medical or physical examination.

Reasonable Accommodations for Employees with Disabilities

What is a reasonable accommodation?

With regard to disability, reasonable accommodation means steps which must be taken to accommodate the known physical or mental limitations of a qualified disabled person unless doing so would cause significant difficulty or expense for the employer (undue hardship). This includes, but is not limited to, (nor does it necessarily require),

  • making facilities readily accessible to and usable by people with disabilities,
  • job restructuring,
  • modified work schedules,
  • reassignment to a vacant position,
  • acquisition or modification of equipment or devices,
  • granting a leave of absence and the provision of aides on a temporary or periodic basis.

An employer is not necessarily required to furnish the accommodation preferred by a job applicant or employee, provided that the accommodation offered is effective. An accommodation is effective if:

  • it gives an applicant with a disability equal opportunity to participate in the job application and hiring process;
  • it removes barriers to performance of essential job functions; or if
  • it allows an employee with a disability equal access to the privileges and benefits of employment.

If no other accommodation would be effective or reasonable, or if the employee volunteers, an employee with a disability may be accommodated by reassignment to a vacant position for which he or she is already qualified. If this is the only remaining option, the employee should not have to compete for the position or find the job by him or herself, neither of which would be an accommodation.

What is 'undue hardship?'

Undue hardship means that the accommodation would be too difficult or too expensive to provide, in relation to the employer's size, financial resources, and the needs of the business.

Under both the ADAA and the Minnesota Human Rights Act, an employer can refuse to make a particular accommodation if it would cause an undue hardship. An employer raising the defense that an accommodation would impose an undue hardship on its operations, must be able to demonstrate this contention.

In determining whether an accommodation would impose an undue hardship on the operation of a business or organization, factors include:

  • its overall size, number of employees or union members, and the number and type of facilities;
  • the type of the operation, including the composition and structure of the work force, and the number of employees at the location where the employment would occur;
  • the nature and cost of the needed accommodation;
  • the reasonable ability to finance the accommodation at each site of business; and
  • documented, good-faith efforts to explore less restrictive or expensive alternatives, including consulting the disabled person or knowledgeable disabled persons or groups.

What if an employee and employer disagree about what kind of accommodation is appropriate?

The employer has some flexibility in determining exactly how to accommodate a disabled individual's needs, and may choose a less expensive option than one proposed — as long as it does the job.

An employer is not necessarily required to furnish the accommodation preferred by a job applicant or employee, provided that the accommodation offered is effective. An accommodation is effective if:

  • it gives an applicant with a disability equal opportunity to participate in the job application and hiring process;
  • it removes barriers to performance of essential job functions; or if
  • it allows an employee with a disability equal access to the privileges and benefits of employment.

Can an employee request a stress-free work environment as an accommodation?

Anxiety, depression, and other mental health issues may also constitute a disability requiring a reasonable accommodation. Can an employee request a stress-free work environment as an accommodation? Probably not, but in some cases, some changes in policies or procedures could be required to make a job less stressful for an individual with a disability. Certainly, any harassment of an employee with a disability must be promptly addressed by an employer.

Complying with federal and state laws and accommodations

An employer with 15 or more workers working 20 or more weeks per year must accommodate a disabled employee who asks for an accommodation — if there is an accommodation that would be effective, yet not present the employer with an undue hardship.

Accommodations for an Employee's Religion

Do employers need to make accommodation for an employee's religion?

An employer is required to reasonably accommodate the religious belief of an employee or prospective employee, unless doing so would impose an undue hardship.

Time off for the Sabbath?

In addition to time off for the Sabbath, other religious holy days may require an employer to make an accommodation. The issue is a particular concern for some Jews, who point out the Christian holy days tend to fall on Sundays when businesses may be closed anyway, while days that are sacred to Jews can fall during the work week. By state law, most public employees must be allowed a day off if their religion's holy day does not fall on Sunday (Statute 15A.22.) It's not an extra, free holiday: the day can be charged against the employee's accumulated annual leave, or made up by working an extra day during the year.

Time off for prayer breaks?

As more Muslims join the workforce, a trend fueled by the arrival of Islamic Somali immigrants, time off for prayer breaks has become an issue in Minnesota's factories and other businesses. An employer has a duty to accommodate an employee's need for prayer breaks, unless it would cause an unreasonable burden. The employer might reasonably require the employee to take a shorter lunch or work a longer shift so that everyone works the same number of hours per day.

Dress codes and religious accommodations

Dress codes and grooming standards may have to allow exceptions. If a person's religion mandated a certain style of dress or physical appearance, an employer would have to allow it, unless doing so would cause an undue hardship. There can be business reasons that override the need to accommodate an exception to the dress code, including safety issues. An employer might need to prove that the employee cannot safely do the job in the attire his or her religion requires.

Can undue hardship be based on an employer's customers' preferences?

A company's claim of undue hardship can be based on its bottom line, but not on the preferences of its customers. Suppose a clerk in a retail store practices a religion that requires a certain style of dress, or covering her face with a scarf. Even if customers don't like her appearance and choose to shop elsewhere, the employer cannot respond to customer preference by firing her. Although customer preferences -- or prejudices -- could well affect a company's profits, the courts have never found that customer preference was a legitimate business necessity... it is not a valid reason for discrimination. If customers didn't like an employee's race, sex, or sexual orientation, their preferences would be equally irrelevant.

How far does an employer have to go with religious accommodations?

As with most discrimination law, the answers would depend on the specifics of each case. But when it comes to religion, the law itself is not nearly as specific as it is concerning other forms of discrimination like sexual harassment. The Minnesota Human Rights Act defines sexual harassment in some detail but the Act does not define what constitutes a religiously "hostile work environment." Nor does the key federal law prohibiting religious discrimination, Title VII of the Civil Rights Act of 1964. It's clear enough that, in most cases, an employer can't refuse to hire someone or fire them or otherwise discriminate against them because of their religion.

But does that mean an employer needs to accommodate an employee's religious belief, to bend its rules and change its policies, change schedules and revise dress codes, when they conflict with an individual employee's religious convictions? The Human Rights Act doesn't specifically say so, but court decisions have made it clear that the duty to not discriminate based on religion can include the duty to accommodate religious practices.