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EEOC is Watching You: Recruitment Discrimination Comes to the Forefront

by May 30, 2006

Who ultimately receives employment opportunities is highly dependent on how and where the employer looks for candidates.” The above quote is found in the Equal Employment Opportunity Commission’s compliance manual on race and color discrimination, which was released on April 19, 2006. While there has been a great deal of attention lately to the Office of Federal Contract Compliance Programs and its new definition of an Internet applicant, the EEOC has provided a clear signal that recruitment practices and procedures will be scrutinized much more carefully in the future for possible discrimination. The remainder of this article summarizes some of the key points regarding recruitment and hiring that are covered in this compliance manual, followed by suggestions for employers and recruiters to reduce their chances of legal problems.

A Renewed Focus on Discrimination in Recruitment and Hiring Causes of Recruitment Discrimination

This compliance manual notes five recruitment practices that may be given particularly careful scrutiny by the EEOC:

  1. Illegal use of job advertisements and recruitment agencies. The compliance manual notes that job advertisements that specify race, ethnicity, or other protected categories are illegal. Similarly, asking a recruiter to use race, ethnicity, and other protected categories (e.g., age) in the hiring process is illegal. Indeed, the compliance manual notes that if discrimination occurs in the recruitment process, both the employer and the employment agency may be liable. Recruiters, employment agencies, and employers should beware; recruitment and hiring can create legal liability for all parties, not just the employment agency or the employer. You may be responsible for the discriminatory acts performed by another party.
  2. Word-of-mouth recruiting. Although many organizations make extensive use of word-of-mouth recruiting, the compliance manual notes that this technique “in a non-diverse workforce is a barrier to equal employment opportunity if it does not create applicant pools that reflect the diversity in the qualified labor market.” Thus, caution is needed when over-relying on word-of-mouth recruiting to ensure that it is not creating barriers to hiring minorities.
  3. Homogenous recruiting. The compliance manual notes that use of homogenous recruiting can be a cause of discrimination. The examples provided of homogenous recruiting include an instance where a largely white municipality that is situated next to a largely black municipality only hires its own residents and refuses to advertise in publications that circulate in the largely black municipality. You need to careful, therefore, in choosing applicant sources that do not result in the exclusion, or near exclusion, of protected groups.
  4. Use of stereotyping in decision-making. In accord with current psychological theories, the compliance manual observes that racial bias is not always conscious, and that decisions infected by stereotyped thinking or other forms of less conscious bias may also be discriminatory. Organizations therefore need to be careful to avoid stereotyping when engaging in recruiting and hiring decisions, particularly since decision-makers may be unaware of their biases and stereotypes.
  5. Discriminatory screening of applicants. Besides the obvious factor of using race (or, of course, other protected categories, such as gender) for screening applicants, the compliance manual notes that it is discriminatory to use a screening procedure that has “a significantly disparate racial impact” unless it can be shown to be “job related and consistent with business necessity.” The terms “disparate racial impact” and “job related and consistent with business necessity” are discussed next.

What is Disparate Racial Impact?

Disparate racial impact occurs when a screening device (e.g., educational requirement), or even a recruitment practice, produces a significant difference in the hiring of African-Americans (or other protected racial groups) compared to Caucasians. While a detailed discussion of how to test for disparate racial impact is beyond the scope of this article, suffice it to say that this may be demonstrated by comparing the percentages of African-Americans passing the test or getting hired versus the percentages of Caucasians passing the test or getting hired. Census data comparing the percentage of African-Americans in the workforce versus the percentage of African-Americans in the relevant labor market may also be used to demonstrate disparate racial impact.

What is Job-Related and Consistent With Business Necessity?

There is no one single accepted definition of “job related and consistent with business necessity.” For some recruitment and hiring practices – such as an objective test – legal and professional standards have emphasized the use of an appropriate validation study. One approach to validation involves showing that test performance is sufficiently correlated with job performance (i.e., a criterion-related validation study). Another approach to validation involves documenting that the test (e.g., a typing test) is closely related to the work performed (e.g., typing documents) on the job (i.e., a content validation study). In other instances (e.g., use of safety equipment), a screening procedure that reflects a direct and obvious relationship to successful performance of the job in question may be sufficient to prove job relatedness.

Suggestions for Recruiters and Employers

  • Do you have standardized recruiting and hiring processes? While standardization of recruitment and hiring practices certainly helps diminish the chance of a lawsuit, it by no means guarantees freedom from lawsuits. Recall that disparities between racial or ethnic groups must be defended by proving job relatedness. Standardization of practices, including use of documented job requirements and qualifications, is not always enough to defend your organization in a disparate impact lawsuit, but it is a good start, as it will help in a disparate treatment lawsuit.
  • Do your recruiting and screening practices indicate possible disparities? While highly sophisticated statistical analyses are likely to be used if there is a lawsuit, you can obtain a rough estimate, using simple percentages, as to whether any of your recruiting and screening practices cause disparity between various protected groups. For example, do African-Americans seem to be more heavily screened out with any tests that you use? Is the percentage of racial and ethnic minorities in your workforce similar to the percentage in the geographic area from which you recruit? How about various minimum requirements that you include, such as conviction records? Do they tend to screen out minorities in a greater proportion than Caucasians?
  • Can you provide evidence that each of your recruiting and screening practices is job-related and consistent with business necessity? In addition to legal reasons, it makes logical sense that all of your recruiting and screening practices should be job-related. There should be documented evidence of job relatedness for any tests you use. To ensure that other practices are job-related, you may wish to consider how a jury would view them. It may also be helpful to have an external expert review your recruiting and screening procedures to determine how they compare with current “best practices” and recent research.
  • Are you casting a wide net in your recruiting sources? Recall above that EEOC is particularly concerned about word-of-mouth and homogenous recruiting practices. Where do you recruit from? Are you sure that you are casting as wide a net as possible? Or, are you focusing too heavily on recruitment sources that are almost exclusively used by Caucasian males? You may need to consider broadening your recruitment program to include sources that target minorities and women.
  • Are your recruiters and employment agencies familiar with discrimination laws? Do your recruiters understand the basic legal concepts discussed in the compliance manual? Are they knowledgeable as to what interview questions are illegal to ask? Have they had up-to-date training in these laws? Don’t wait to find out when it is too late; make sure that all of the recruiters you work with, whether they are external or internal to your organization, are knowledgeable and understand discrimination laws.
  • Summary New and changing legal standards and requirements demand attention to ensure that you lessen your legal exposure. As EEOC focuses more on recruitment and hiring discrimination than in the past, your policies and practices in this area may come under greater scrutiny. Now is the time to audit your practices and make sure that your recruiters and hiring managers understand and use legally acceptable employment practices. This article is provided for informational purposes only and is not intended to offer specific legal advice. You should consult your legal counsel regarding any threatened or pending litigation.

This article is provided for informational purposes only and is not intended to offer specific legal advice. You should consult your legal counsel regarding any threatened or pending litigation.

  • Karen Mattonen C.A.C., C.S.P

    I have noticed much confusion between Disparate Treatment and Disparate Impact.
    Disparate Treatment is when someone feels that they are Intentionally (or unintentionally) singled out or is treated differently due to a particular characteristic.

    Disparate Impact is when the employer has a policy which can result in discrimination, even though a protected group may not be singled out at the time, but the policy may not be an actual requirement of the job.

    Using education as an example – This can create both a feeling or set a standard for both Disparate Treatment and Disparate Impact.

    In requesting A formal Education/Degree, for a position especially without asking or taking into consideration Ability, knowledge, talent and skill can eliminate several groups of protected classes. (including those who may have a learning disability).

    Education requirements therefore can be a very subtle method of discrimination even if there is not any intent to discriminate.
    At the same time, refusing to promote individuals because of lack of education also can create both a disparate impact, and predicate a cause for disparate treatment.

    Companies may want to take a good look at their job descriptions and be cautious about what they require – many times the requirements far exceeds the the actual skill required to perform the position.

  • Sunil Brara Sbrara@hotmail.com

    Dr. Harris

    Thanks for expalining the salient features in a simple style with downtoearth examples, that too in few words and furthermore with practical suggestions.Great guidelines!

  • Charles Moore

    I am concerned about a few points here. As for word-of-mouth and recruiting sourcing methods, executive recruiters and corporate recruiters use what is available to them. For instance, if you are looking to enhance your employee referral program using external methods such as Jobster or LinkedIn, an employer cannot control who the 2nd, 3rd, or even 6th level of referral or network is. That depends on who knows who and the level of the open position. If a caucasian knows mostly caucasians or an african american knows mostly african americans or hispanics know mostly hispanics, it is simply a means of where they live and who they know. Executive recruiters look first for the requirements to fill the position after conferring with the hiring manager. As matter of fact, many recruiter will not accept bland job descriptions from HR because they are in fact encouraging discrimination based upon education or skills that may not be exactly what the hiring manager will accept.

    As a recruiter, I don’t care if the person is male, female, black, white, blue, or green – young or old. If you, as a candidate, fail to pass my interview and screening process, you won’t be presented. It may cause disparate racial impact, but that is beyond the scope of what a recruiter does. We are engaged to find an ideal candidate. In addition, because the best candidates usually come from either employee referrals or in the case of 3rd party recruiters, the client employer’s direct competitors, we simply do not reach out to make sure every age, gender, or minority group is aware we are recruiting for an open position.

    In addition, real world reality is that employers often use what we all know are discriminatory references that cannot be proven easily in a court of law. For instance, when I recruited for a gas pipeline company years ago, it was a job working in extreme heat and conditions and required physical lifting that was beyond the capability of most women. They did not come out and say it, but certainly the reference was men only. When a client states ‘we want a very seasoned person’, that means don’t send any young candidates, even if they are qualified. I had a radio station that specifically asked for a conservative male talk show host – that is what their market data told them they needed. Who am I to argue? Lastly a client in Saudi Arabia told me outright ‘you know not to send any Jews, right’? Personally I was surprised until he told me the Saudi government would not approve it even though a majority of the financing came from a well-known Canadian company, who has been a client for years.

    I just think that there is so much politically correct agendas and it drives nore lip service than action by employers. No one wants to discriminate, but forcing everyone to be so P.C. aware is not the answer. CXOs and stockholders don’t care what gender, color, or whatever you are as long as you can do the job hired to do.

    As a male recruiter, I was actually the first male member of a women?s professional society because I felt for many positions I was recruiting for that required loads of multi-tasking at the executive level, women were just better fits and I was able to place many of them. Am I being discriminatory? No, I am simply tapping the market of very qualified candidates.

    It is the job of marketing and PR and HR (not the recruiters or hiring managers) to come up with programs and advertising involving education, training, reaching out to minorities, etc. They can start by actually engaging different groups ? in my industry there are several minority groups that have their own associations and groups – I reach out to them because they are there and often untapped. In addition, adding the blurb about ?we are EEO and encourage minorities to apply? in a short sentence at the bottom of a job description or on a web site is simply lip service. You want to truly be diverse ? then tell candidates and recruiters on your web site and in your job descriptions about the programs you have to reach out to minorities or disabled candidates.

  • David Arnold, Ph.D., J.D.

    Hi:

    Just a bit of clarification with respect to the distinction between the doctrines of disparate treatment and disparate impact. According to the U.S. Supreme Court, under Title VII of the Civil Rights Act of 1964, ‘Disparate treatment is the most easily understood type of discrimination. The employer simply treats people less favorably than others because of their race, color, religion, sex or national origin. Proof of discriminatory motive is critical, although it can in some situations be infrerred from the mere fact of differences in treatment…Claims of disparate treatment may be distinguished from claims that stress disparate impact. The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another…’ Examples of such facially neutral practices, which commonly exhibit disparate impact, include criminal background checks, educational requirements, height requirements, credit checks, experience requirements, cognitive skills assessments, licensing/certification requirements and strength requirements.

    While Title VII does not make either form of discrimination illegal per se, the law requires that the discriminatory harm be balanced against the employer’s business interests served by the discriminatory practice. This balancing of interests varies depending on the doctrine of discrimination. In the case of disparate treatment cases, where the plaintiff has actually shown that the employer intentionally discriminated on the basis of protected subgroup status, the employer bears an exceptionally difficult and rarely demonstrable burden to justify its practices. The employer must show that the its intentionally discriminatory employment decision constituted a bona fide occupational qualification. In contrast, under the disparate impact paradigm, an employer must merely show, that it practices that exhibit disparate impact, are job related and consistent with business necessity. This is a significantly lower standard, which employers are commonly able to meet.

    I trust this information adds a bit more clarity regarding the doctrines of disparate treatment and disparate impact.

  • Karen Mattonen C.A.C., C.S.P

    Charles,

    There are a few things that you mentioned that really create some concern – The EEOC is planning to come down harder on this industry because there are Many who Don’t understand the legal Responsibilities and liabilities that Recruiters Hold during the Recruiting, Selection, Interviewing and hiring process. Now is the Time to learn and be aware ? protect yourselves!

    Recruiters are NOT off the hook because they are following their Clients request.. And we cannot use the Just because they do then we should be able to as well excuse either.
    Charles ? here we are in 2006 and this argument shows the irresponsibility or lack of knowledge of our industry. It is no wonder that they have decided to crack down on us.

    Recruiters can indeed be held FULLY liable and Accountable for the Actions of their Clients. If your client has proven that they will or can discriminate, and you continue to work with that client then You too will be held liable for encouraging and perpetuating the discrimination.

    There are several scenarios how this may happen – directly through a candidate; or if you Client is investigated, and in reviewing the records of the candidates you submit, then you can ultimately find yourself in an investigation as well. You may also find yourself as a target of discrimination just by the Job Descriptions you have posted on the Net. Yes the EEOC will scan the Websites every so often.

    Many times recruiters feel that we can hide behind the shadows of our clients, and Vice Versa, but that Is Not the Case. Our Clients sometimes do have a safety net that we don’t have (state laws) – depending on number of employees Certain Laws may not apply to the Candidate – but this is NOT the Case with the Recruiter. We must at all times present the Best Qualified and experienced for the position, no matter what the request of the Clients are. If we Note that the Client will continue to discriminate against those candidates, then it is our responsibility to move on from that client. (remove yourself from Legal Risk)

    Now you brought up an interesting point.. if you find that you work in an industry that is predominately white male, but have made all attempts to locate a diverse Candidate, then your attempts will be duly noted. Also there are some things called a BFOQ ? bona Fide Occupation Qualification ? take your talk show host ? or actors for example ? there may be a reason that they may request a Male ? (sometimes hard to prove, but can be utilized at times ? take Hooters for example)

    Another thing you mentioned that was a concern to me, mainly due to the fact that many think along those same lines – Your Comment – much of this is not easy to prove in a court of law-

    well here are 2 things many don’t realize – When the Candidate brings the Complaint to the DOL or EEOC, the burden of Proof is on them initially – If the EEOC decides that the Case is worth investigating.. well the burden of proof is now on the Recruiter/Company.. To prove that you were Not discriminating. Either Intentionally or Not Intentionally.

    There is about a 50/50 percent Chance of winning or Losing – but the expense of going through and defending your intent in a Legal Process well this does get pretty enormous ? is it really worth it? Many don?t realize that the legal process can run up to 100k plus not including the fines and penalties if you were found guilty.

    There are so many lawsuits against companies and recruiters today ? 400 employment Lawsuits a DAY and Counting. Why even take that Risk?

    You will wear a seatbelt when driving a Car, you obey the laws of the streets whether there is a cop behind you or not. You protect your family by locking the Doors.. Well should you not do the same for you, your company and your client as well?

  • Karen Mattonen C.A.C., C.S.P

    For those who may want some questions answered about EEOC and discrimination.. the EEOC was gracious to be on a panel with recruiters. The topic was about Recruiting and Discrimination.

    The Debate was Very informative and actually really interesting. 700 People attended live, and the feedback was amazing.

    Anyways – the Debate Can still be Downloaded at http://www.accolo.com/debate/ – It will open up another window, so for those who have privacy software, hold down the Control Key to be able to access the webinar.

    Thanks
    Karen M.

  • David Arnold, Ph.D., J.D.

    Hi:
    Just to follow up a bit on the topic of bona fide occupational qualifications (‘BFOQs’). In order for the BFOQ defense to be an effective defense to a charge of intentional discrimination (disparate treatment), an employer must show that the absence of the protected subgroup would undermine the employer’s ability to perform its primary business function or central mission. In an attempt to use the BFOQ defense, Hooters claimed that being a female was a BFOQ. The EEOC found otherwise and concluded that Hooters’ central mission was serving food–not vicarious sexual entertainment as Hooters claimed. Hence, being female was not a BFOQ. Hooters settled the suit for $3.75 million. While the settlement allowed Hooters to continue to hire only women waitresses, they were mandated to create various gender-neutral positions. Southwest and Continental Airlines have also been unsuccessful in claiming that being female was a BFOQ for the job of flight attendant. In contrast, a Playboy Club in New York was able to mount a successful BFOQ defense. Here the New York Human Rights Appeals Board found that vicarious sexual entertainment was the primary business function of these clubs and hence being female was a necessary qualification. Bottom line, there are going to be extremely few jobs where an employer can engage in intentional discrimination and legally justify doing so.

    Most recently the EEOC has filed a disparate treatment suit as indicated by the following March 31, 2006 press release:
    LOS ANGELES ? The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it has filed a national class action sex discrimination lawsuit against Lawry?s Restaurants, Inc., doing business as Lawry?s The Prime Rib, Five Crowns, and the Tam O?Shanter Inn, on behalf of male applicants who were systematically rejected for hire as food servers due to their gender. Lawry?s, a California-based corporation, operates restaurants in Las Vegas, Nevada, Chicago, Illinois, Dallas, Texas, Los Angeles, Beverly Hills and Corona del Mar, Calif.
    In its lawsuit, the EEOC alleges that Lawry?s instituted a policy of hiring only women for server positions in 1938 and failed to update the antiquated policy with the passage of the Civil Rights Act of 1964. The EEOC?s suit, (U.S. Equal Employment Opportunity Commission v. Lawry?s Restaurants Inc., d/b/a Lawry?s The Prime Rib, et al., CV 06-1963 DDP (PLAx)) was filed in U.S. District Court for the Central District of California after the federal agency first attempted to reach a voluntary settlement. The EEOC?s suit seeks back pay and compensatory and punitive damages, in addition to remedial relief.

    ?Lawry?s practice of hiring only women as servers, with their period costumes, pre-dates the landmark Civil Rights Act of 1964,? said EEOC Los Angeles Regional Attorney Anna Y. Park. ?Nonetheless, the practice of denying men the opportunity to work in the higher-paying server jobs is blatant sex discrimination. An employer as large and sophisticated as Lawry?s should certainly know better and act better.?

    I trust these clarifying thoughts are helpful.