It's the perfect storm for a discrimination lawsuit: limited recruiting resources coupled with managers who haven't been trained in the validity of hiring. Unfortunately, companies often devote too little effort toward making sure their hiring practices are compliant, and "they're losing a large percentage of hiring-related lawsuits," warns employment-relations attorney Bob Gregg, a partner at Boardman Law Firm.
EEOC-enforced laws and other laws cover employers and entities such as employment agencies and make it illegal to recruit, test and hire new employees in ways that discriminate based on race, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. For example, the EEOC prohibits a covered employer from testing the reading ability of Black applicants but not testing the reading ability of white counterparts. In Lewis v. the City of Chicago, a group of Black firefighters successfully argued that a test used to recruit new hires for the Fire Department of Chicago was race discrimination.
Similarly, limits on, say, age can put an organization at risk. In Jaksha v. Bute-Silver Bow County, the Montana Supreme Court found "no rational basis" for the hiring age cutoff of 34. The suit was brought by a 35-year-old, who was rejected while those only a few months younger were hired.
How can you protect your company from pre-employment discrimination? Consider these tips:
Standardize hiring procedures for all operations. All published job advertisements must not be written in a way that shows a preference for a group or discourages some people from applying. After a three-year legal battle, L'Oreal's Garnier division and its recruitment agency were found guilty last year of racism for seeking an exclusively white sales team using a code ("bleu-blanc-rouge," the French flag), excluding Asian, Arab and Black women.
Additionally, ensure that all screening practices are fair. Although the case has since been dismissed, in Young v. Covington & Burling LLP, the plaintiffs alleged that Black job candidates had to have graduated from more prestigious law schools with better grades than white candidates did.
Identify barriers to hiring. Recruiters may be over-relying on one particular hiring tool or source. Internal word of mouth, for example, can be a potential liability. If most new hires are garnered through referrals—and your workforce is primarily white—the company may be at risk if the result is that the vast majority of new hires are white.
Recruit from a broad talent pool. Start by benchmarking your workforce to find out if the percentage of women, Blacks, Latinos and Asians reflects the demographics of your operations. Then make sure your recruiting sources aren't skewed toward any particular group. Are hiring managers tapping into underserved communities in all the regions where you operate? If you recruit from colleges, are HBCUs and Hispanic-serving institutions part of the equation?
In addition, you can limit liability if job openings are advertised in media outlets and career boards, such as DiversityInc Careers, that have a proven track record for attracting a diverse slate of candidates.
Provide hiring training to all managers. Since applicants as well as references can only be asked about the ability to perform the job, and decisions cannot be based on stereotypes, hiring managers must know the key job-related criteria. "If you're looking for someone with good communications skills," says Gregg, "what does that mean? That could have a different meaning to different people. And how is that criteria being measured?"
Also, make sure the essential functions of the job are essential, he advises, and that they "haven't changed over time."
Hiring managers must be trained to conduct job interviews. Unless relevant, pre-employment questions about an applicant's age; marital status; organizations, clubs, societies or memberships; credit rating; or medical condition or the existence, nature or severity of a disability, among other things, can put your company at risk.
In a settled lawsuit brought against John Jay College by the U.S. Department of Justice—the agency responsible for enforcing the Immigration and Nationality Act—it was alleged that the institution practiced citizenship-status discrimination during the employment-eligibility verification process by requesting Department of Homeland Security documents from non-U.S. citizens but not from U.S. citizens.