It's the perfect storm for a hiring-discrimination lawsuit: slashed recruiting budgets and managers who haven't been trained in the validity of hiring. Unfortunately, companies often devote too little time to making sure their recruiting practices are compliant, and "they're losing a large percentage of hiring cases," says employment-relations attorney Bob Gregg, a partner at Boardman Law Firm.
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EEOC-enforced laws cover employers and entities such as employment agencies and make it illegal to recruit 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, unless necessary to the operation of the business, 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 argued that a test used to recruit new hires for the Fire Department of Chicago was racially discriminatory.
The law also prohibits employers from using non-job-related neutral tests or selection procedures that disproportionately exclude certain groups.
How can you protect your company from hiring discrimination? Consider these tips:
Standardize hiring procedures for all operations. Be sure all published job advertisements, for instance, aren't written in a way that shows a preference for or discourages some groups from applying. And be sure all screening practices are fair and equal. Although the case has since been dismissed, in Young v. Covington & Burling LLP, the plaintiffs charged that Black job candidates had to have graduated from more prestigious law schools with better grades than white candidates.
"Also make sure the essential functions of the job are essential and haven't changed over time," advises Gregg. In addition, openings should be placed in media outlets and on career boards, such as DiversityInc's career center, that have a proven track record of attracting a diverse slate of candidates.
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 gained through referrals—and your workforce is primarily white—the company may be at risk if the result is that most new hires are white.
Recruit from a broad talent pool to eliminate disparities. Start by benchmarking your workforce to find out if the percentage of women, Blacks, Latinos and Asians in your workforce represent the geographic area of the 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, for instance, are HBCUs and Hispanic-serving institutions part of the equation?
Provide hiring training to all managers, both generic and job-specific. Since applicants as well as references can only be asked about the ability to perform job function, 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? It could have a different meaning to different people. How is that criteria being measured?"
Managers should also know how to conduct an interview. Unless relevant, pre-employment questions about an applicant's age—including organizations, clubs, societies or memberships; credit rating; medical condition or the existence, nature or severity of a disability—can all put your company at risk. Similarly, managers should not ask for a photograph of an applicant.