EEOC is Watching You: Recruitment Discrimination Comes to the Forefront

May 29, 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.
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