Before the first interview: what Title VII, the ADEA, and the ADA require in hiring

Discrimination exposure does not wait for an employee’s first day. A job posting, an application form, an interview question, a post-offer medical screen, or a rejection email can each become the basis of a charge, and the person filing it never has to have worked for you. The federal antidiscrimination statutes cover job applicants, though not always in the same way they cover employees. In Florida, for example, the federal appeals court has held that one part of the age discrimination statute reaches employees but not applicants, which is covered in the ADEA section below.

Three federal statutes do most of the work in hiring: Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA). Florida layers its own statute on top, and in some areas, including age, it reaches further than federal law. And the federal agency that enforces all three, the Equal Employment Opportunity Commission (EEOC), has changed how it enforces them over the past year. That change affects where risk shows up. It does not change what the statutes require.

Who is covered: the headcount thresholds

Coverage depends on headcount, and the thresholds are not the same across laws:

• Title VII, the ADA, the Genetic Information Nondiscrimination Act (GINA), and the Pregnant Workers Fairness Act (PWFA): 15 or more employees
• ADEA: 20 or more employees
• Florida Civil Rights Act: 15 or more employees, for every category it covers, including age
• City of Tampa Human Rights Ordinance: 5 or more full-time employees (more than 30 hours a week), or more than 15 employees regardless of hours, in each of 13 or more calendar weeks in the current or preceding calendar year, for employers located within Tampa city limits

The count is not a snapshot of today’s payroll. Under the Florida Civil Rights Act’s definition, which uses the same structure as the federal statutes, an employer is covered if it had the required number of employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. An employer that had 15 or more employees in 20 or more calendar weeks last year may already be covered this year, even if headcount has since dipped. Tampa’s ordinance uses its own 13-week measure, shown above.

Title VII: the foundation

Title VII prohibits discrimination based on race, color, religion, sex, and national origin. In Bostock v. Clayton County (2020), the Supreme Court held that firing someone for being gay or transgender is sex discrimination under Title VII, and the EEOC describes sex as including pregnancy, sexual orientation, and transgender status. In hiring, Title VII reaches every step of the process:

• Job advertisements. A posting cannot express a preference for, or discourage applicants based on, a protected trait.
• Recruitment. How candidates are sourced matters, not just how they are selected. The EEOC’s own example: an employer that relies on word-of-mouth referrals from a workforce made up almost entirely of one national origin group may violate the law if nearly all new hires end up coming from that same group.
• Screening and tests. Any test an applicant is required to take must be necessary for and related to the job.
• Decisions. A hiring decision cannot rest on stereotypes or assumptions about a protected group.

Two ways a hiring decision can be discriminatory

Disparate treatment is intentional: a protected trait was a factor in the decision. Disparate impact does not require intent: a neutral practice, such as a screening requirement, a test, or a blanket exclusion, disproportionately screens out a protected group and is not job-related and consistent with business necessity. The Supreme Court recognized disparate impact in 1971, and Congress wrote it into Title VII in the Civil Rights Act of 1991, at 42 U.S.C. § 2000e-2(k). Federal enforcement of that second theory has changed significantly this year, which is covered in its own section below.

The standard is the same for every applicant

In June 2025, in Ames v. Ohio Department of Youth Services, a unanimous Supreme Court rejected a rule several federal appeals courts had applied, which required plaintiffs from a majority group to show additional “background circumstances” before their discrimination claims could move forward. Title VII protects any individual, and the test does not change based on which group the plaintiff belongs to. For hiring, the practical result is that an applicant from any group who challenges a selection decision faces the same standard of proof.

Religion in the hiring process

Title VII requires employers to reasonably accommodate religious beliefs and practices unless doing so would cause undue hardship, and that obligation reaches applicants as well as employees. In EEOC v. Abercrombie & Fitch Stores (2015), the Supreme Court held that an employer may not make an applicant’s religious practice, whether confirmed or only suspected, a motivating factor in a hiring decision. The applicant does not have to have asked for an accommodation first. The undue hardship standard for religion is also its own. In Groff v. DeJoy (2023), the Supreme Court held that showing more than a minimal cost is not enough; as the EEOC now describes it, undue hardship for a religious accommodation means a burden that is substantial in the overall context of the employer’s business. That is a different test from the “significant difficulty or expense” standard that applies to disability accommodation under the ADA and pregnancy-related accommodation under the PWFA.

The ADEA: age in hiring

The ADEA protects applicants and employees age 40 and older, and applies to employers with 20 or more employees. It is the same statute behind the severance-waiver requirements covered in our July issue on the WARN Act and the OWBPA, but in hiring it shows up in different places:

• Postings. The EEOC’s example is a help-wanted ad seeking “recent college graduates,” which may discourage applicants over 40 and may violate the law.
• Tests and screens. The EEOC’s position is that a test that screens out applicants 40 and older is permissible only if it is based on a reasonable factor other than age. Florida employers should know that the Eleventh Circuit, the federal appeals court covering Florida, held en banc in Villarreal v. R.J. Reynolds Tobacco Co. (2016) that the ADEA’s disparate impact provision, section 4(a)(2), covers employees and does not cover applicants for employment. Intentional age discrimination in hiring remains prohibited.
• Application questions. Federal rules do not outright prohibit asking for a date of birth or graduation year. But the EEOC’s position is that pre-employment questions that would reveal age, or any other protected trait, may be used as evidence of intent to discriminate unless the employer can justify them with a business purpose. The ADEA regulations add that a request for an applicant’s age or date of birth is not, in itself, a violation, but will be closely scrutinized to make sure it serves a permissible purpose.

Remedies under the ADEA work differently from Title VII. Compensatory and punitive damages are not available. Back pay is, and for a willful violation, the employee or applicant can also recover liquidated damages equal to the back pay award, which effectively doubles it.

The ADA: the sequence is the rule

The ADA applies to employers with 15 or more employees. Most of its hiring rules are about timing: what an employer may ask, and when.

• Before an offer. An employer may not ask whether an applicant has a disability, may not ask about the nature of an obvious disability, and may not require medical questions or a medical exam. An employer may ask whether the applicant can perform the job, and how they would perform it.
• After a conditional offer, before the start date. An employer may require medical questions or a medical exam, but only if every new employee entering the same job category is subject to the same questions or exam. If the results are used to screen out someone with a disability, the screening criteria have to be job-related and consistent with business necessity, and the employer has to find that the essential functions of the job cannot be performed with reasonable accommodation.
• After the employee starts. Medical questions and exams are generally limited to supporting an accommodation request or to situations where the employer has reason to believe a medical condition prevents the employee from performing the job successfully or safely.

Any medical information obtained at any of these stages has to be kept confidential and stored in a separate medical file, not the personnel file.

The accommodation obligation also starts before hire. If an applicant with a disability needs an accommodation to apply, such as a sign language interpreter for an interview, the employer must provide it unless doing so would cause undue hardship.

Two related laws that use the same hiring checkpoints

GINA prohibits employers with 15 or more employees from requesting genetic information from applicants, and genetic information includes family medical history. That matters at the post-offer stage: a medical questionnaire that is otherwise permissible under the ADA can create a separate problem if it asks about family medical history. The GINA regulations also require employers to tell health care providers conducting employment-related medical exams not to collect genetic information, including family medical history.

The PWFA requires employers with 15 or more employees to reasonably accommodate known limitations related to pregnancy, childbirth, or related medical conditions, unless doing so would cause undue hardship. That obligation covers job applicants who need an accommodation to apply, not just current employees.

Pre-employment questions: what to leave off the form

The EEOC’s general rule for the pre-employment process is that the information requested should be limited to what is essential for determining whether a person is qualified for the job. In practice, that means reviewing application forms, interview guides, and screening questions for anything that would reveal a protected trait if answered:

• Photographs. The EEOC’s guidance is not to request a photo before hire. If one is needed for identification, it can be collected after an offer is made and accepted.
• Memberships. Questions about clubs, societies, or organizations an applicant belongs to can reveal race, religion, national origin, or other protected traits and should generally be avoided.
• Family status. Questions about marriage or children are a federal evidence issue, and for Florida employers with 15 or more employees, marital status is a protected category under state law in its own right.
• Medical and disability questions. Prohibited before an offer under the ADA, as covered above.
• Criminal history. The EEOC’s position is that asking about an applicant’s background, including criminal history, is not illegal in itself; what federal antidiscrimination law governs is how that information is used. Where an employer uses a background screening company to obtain a report, the federal Fair Credit Reporting Act imposes its own disclosure, authorization, and pre-adverse and adverse action notice steps, separate from anything the EEOC does.

What changed at the EEOC, and what didn’t

The federal enforcement picture for hiring looks different in late 2026 than it did two years ago. The key developments:

• April 23, 2025: Executive Order 14281 directed federal agencies to deprioritize enforcement of statutes and regulations to the extent they include disparate impact liability.
• January 22, 2026: The EEOC voted to rescind its 2024 Enforcement Guidance on Harassment in the Workplace.
• June 4, 2026: The EEOC approved a National Enforcement Plan for fiscal years 2025 through 2029, replacing its prior Strategic Enforcement Plan. The plan prioritizes intentional discrimination and states that the agency will eliminate the use of disparate impact theories in its investigations to the maximum degree possible and will not commence, develop, or continue litigation advancing disparate impact claims. It also lists hiring practices that consider race or sex, and job advertisements that discourage applicants based on a protected characteristic, among its priorities.
• June 9, 2026: The Department of Justice’s Office of Legal Counsel issued an opinion, requested by the EEOC’s Chair, concluding that disparate impact liability as the EEOC currently interprets it under Title VII is unconstitutional, and that the validation-study requirements in the EEOC’s Uniform Guidelines on Employee Selection Procedures conflict with Title VII and the Constitution.
• July 6, 2026: The EEOC published a final interpretive rule, effective that day, rescinding its 1979 Guidelines on Affirmative Action Appropriate Under Title VII (29 CFR part 1608), following a June 29 Commission vote. It also rescinded the related compliance manual section on affirmative action.
• October 28, 2026: The EEOC voted to rescind its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions, effective immediately, and announced the rescission on October 29. The EEOC states that the rescission does not require employers to drop lawful practices they adopted in response to the guidance, and that Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination. As of this writing, the rescission has not appeared in the Federal Register.
• Pending: The White House regulatory review site, reginfo.gov, shows an EEOC final rule under review since October 16, 2026 that would rescind the Uniform Guidelines on Employee Selection Procedures (RIN 3046-AB43). The Uniform Guidelines govern how hiring tests and other selection procedures are validated. The EEOC’s regulatory agenda describes that action as rescinding the interpretive rulemaking portions of the guidelines, and says it would not affect other agencies’ interpretation and application of them. As of this writing, that rescission has not been published.

What did not change is the statute. Disparate impact remains written into Title VII at 42 U.S.C. § 2000e-2(k), and an Office of Legal Counsel opinion guides executive branch agencies; it does not bind the courts. An applicant who files a charge can still take a disparate impact claim to court after the charge process ends, whether or not the EEOC investigates it. State and local agencies process complaints under their own statutes on their own terms.

The practical takeaway for employers is that the risk has moved, not disappeared. A neutral screening practice the EEOC is unlikely to investigate can still be litigated privately. And a screening practice applied inconsistently, such as a background check policy enforced for some candidates and waived for others, can support a disparate treatment claim, which is exactly where the agency has said its attention is going.

How a hiring claim moves: the charge process

An applicant who believes they were turned down for a discriminatory reason generally has to file a charge with the EEOC, or with a state or local agency, before going to court. The federal deadline is 180 days from the decision, extended to 300 days where a state or local agency enforces a law covering the same basis. The EEOC’s Miami District Office, which covers Florida, applies the 300-day deadline to charges against Florida employers with 15 or more employees for race, color, national origin, sex, religion, and disability, and with 20 or more employees for age.

Through worksharing agreements, a charge filed with the EEOC is also treated as filed with the partner state or local agency, and the reverse. Under the Florida Civil Rights Act, a complaint must be filed with the Florida Commission on Human Relations within 365 days, and filing with the EEOC satisfies that requirement. The Commission has 180 days to determine whether there is reasonable cause.

Federal compensatory and punitive damages for intentional discrimination under Title VII and the ADA are capped by employer size:

• 15 to 100 employees: $50,000
• 101 to 200 employees: $100,000
• 201 to 500 employees: $200,000
• More than 500 employees: $300,000

Those caps do not include back pay, which is recovered separately. The Florida Civil Rights Act is structured differently. Its text limits back pay to no more than two years before the complaint was filed. For private employers, it caps punitive damages at $100,000 and sets no cap on compensatory damages. The state and its agencies and subdivisions are not liable for punitive damages, and total recovery against them is limited by section 768.28(5), Florida Statutes.

Retaliation protections apply in hiring too. An employer cannot take action against an applicant, an employee, or a former employee because that person complained about discrimination, filed a charge, or participated in an investigation.

Florida employers: the state and local layer

The Florida Civil Rights Act prohibits discrimination in hiring based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. Several of its differences from federal law show up directly in hiring:

• Age, with no minimum and a lower threshold. The ADEA protects only people 40 and older and applies only at 20 employees. The Florida statute lists age without a minimum and applies at 15 employees. An employer with 15 to 19 employees is outside the ADEA but inside the Florida statute for age, and the statute’s text does not limit its age protection to applicants over 40.
• Marital status. Not a protected category under Title VII, but protected under Florida law.
• Advertising. The Florida statute separately prohibits job notices or advertisements indicating a preference, limitation, or specification based on race, color, religion, sex, pregnancy, national origin, age, absence of handicap, or marital status.
• Posting. The statute requires covered employers to post a notice provided by the Florida Commission on Human Relations (section 760.10(11)), and the Commission’s rule (Fla. Admin. Code R. 60Y-2.010) ties that obligation to notices the Commission provides. It’s worth confirming with the Commission which notice, if any, it currently provides, in addition to posting the federal “Know Your Rights” poster.

The Florida statute’s list of categories does not name sexual orientation or gender identity. For employers with 15 or more employees, federal coverage comes through Title VII’s sex category as the EEOC describes it, and some Florida cities and counties name those categories directly in local ordinances.

Local ordinances are where Florida coverage reaches furthest. The City of Tampa Human Rights Ordinance applies to employers located within city limits that have 5 or more full-time employees (more than 30 hours a week), or more than 15 employees regardless of hours, in each of 13 or more calendar weeks in the current or preceding calendar year, and adds sexual orientation, gender identity or expression, and familial status to the categories covered under federal and state law. The EEOC lists a 180-day deadline for filing with the Tampa Office of Human Rights. The EEOC’s Miami District Office also lists local agencies in Miami-Dade County, Orlando, St. Petersburg, Pinellas County, and Lee County. Employers in or near those areas should confirm whether a local ordinance applies at a lower headcount than state or federal law.

Records and postings

Hiring records are evidence, for both sides. EEOC regulations require covered employers to keep personnel and employment records, including applications and records related to hiring decisions, for one year. Once a charge is filed, all records relevant to it, including records for other candidates who applied for the same position, must be kept until the charge and any resulting lawsuit are fully resolved. The ADEA separately requires payroll records to be kept for three years. Private employers with 100 or more employees, and federal contractors with 50 or more employees that meet certain criteria, must also file an annual EEO-1 workforce data report. As of this writing, the EEOC has not announced the 2025 collection. On July 23, 2026, the EEOC proposed a rule (RIN 3046-AB37) that would remove the EEO-1 reporting requirement, along with the other EEO reports under 29 CFR part 1602; the comment period closed August 24, 2026. As of this writing, no final rule has been published, so the existing requirement remains in effect. The proposal would keep the general one-year record preservation requirement described above.

Required postings for a Florida employer with 15 or more employees include the federal “Know Your Rights: Workplace Discrimination is Illegal” poster. The Florida Civil Rights Act also calls for posting a notice provided by the Florida Commission on Human Relations, when the Commission provides one.

Putting it together

Most of the decisions covered here happen before an offer letter goes out. Here’s what to check:

• What is the headcount, measured across 20 or more calendar weeks in this year or last, and does it cross 15 (Title VII, ADA, GINA, PWFA, and the Florida Civil Rights Act) or 20 (ADEA)? For a business located in Tampa, did it have 5 or more full-time employees, or more than 15 employees regardless of hours, in each of 13 or more calendar weeks this year or last?
• Do current job postings avoid language signaling a preference based on age, sex, marital status, or any other protected category, including phrases like “recent graduates”?
• Does the application ask only for what is needed to evaluate qualifications, without photos, date of birth or graduation year, organization memberships, marital status, or any disability or medical questions?
• Are interview questions structured and asked consistently across candidates for the same role?
• Is every screening tool, test, or background check requirement tied to the actual job, documented, and applied the same way to every candidate?
• If medical exams or questions are used, do they happen only after a conditional offer, apply to everyone entering the same job category, leave out family medical history, and get stored separately from personnel files?
• Is there a process for applicants who need an accommodation to apply, whether for a disability, pregnancy, or a religious practice?
• If a background screening company is used, are the federal Fair Credit Reporting Act disclosure, authorization, and adverse action steps built into the process?
• Are applications and hiring records kept for at least one year, with a process to preserve everything once a charge arrives?
• Is the federal poster up, has the business confirmed with the Florida Commission on Human Relations whether a current state notice is provided, and has it checked whether a local ordinance applies?

This post is general HR and compliance information, not legal advice. Requirements vary based on employer size, location, and circumstances. Consult qualified legal counsel when reviewing hiring practices or responding to a charge of discrimination.