EEOC is Watching You: Recruitment Discrimination Comes to the Forefront
by Dr. Michael Harris 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:
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.
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.
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.
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.
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
pend