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.

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.

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?

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.

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.

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!

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.