The U.S. Equal Employment Opportunity Commission recently held a meeting with "a battery of experts" on disparate treatment in hiring. According to the EEOC, hiring discrimination continues to run rampant.
Time for a grain of salt here: According to the EEOC's press release, most of the experts were from the EEOC, or were individuals who had been denied jobs and claimed they were discriminated against. Only one individual from an "employer" group was quoted (scroll way down for Rae Vann's comments). So I'm respectfully skeptical that there is an epidemic of hiring discrimination -- particularly so, since we know that the EEOC considers background and credit checks, and discrimination against the unemployed, to be illegal.
Plus, who's hiring these days, anyway?
All of my respectful skepticism aside, since this appears to be a big issue for the EEOC, it is a good idea for employers to ensure that their hiring practices will withstand scrutiny. Here are six suggestions that may help you stay out of trouble:
1. If you're a federal contractor, make sure your hiring processes comply with affirmative action requirements. These requirements are complex, and are about to become much more so if proposed regulations on recruitment of veterans go into effect. But make sure you are doing everything that your affirmative action consultants/attorneys tell you to do.
2. Even if you're not a federal contractor, periodically monitor your hiring statistics to ensure that applicants of a given race, national origin, age, or sex (etc.) are not being rejected disproportionately. If you see a statistical problem, then do a more in-depth analysis of these individuals' qualifications to ensure that you can explain the disparities.
3. Cast as wide a net as you can. Circumstances will vary, of course -- when you're searching for your new CEO, you don't want to consider every candidate in your county who has a worker's permit. But, generally, the less "cherry-picking," the better. Make sure that you recruit from appropriate sources to ensure that you have a balanced pool of candidates ... or, at least, that no one who is qualified will be able to say you didn't give them the chance.
4. Make sure your hiring managers know which criteria are legal, and which are illegal. If you have not had training for your hiring managers in a while, it may be a good idea to conduct some. Managers need to be aware of the laws that apply to your company and the consequences for violation. They also need some practical advice on how to deal with difficult hiring situations, such as qualified candidates who may need disability-related or religious accommodations.
5. Watch out for "gray areas." In my experience, few employers discriminate on the grounds that are clearly prohibited by law, but there are a number of areas that are in a "gray zone" and may cause problems. Background and credit checks, and "unemployment discrimination," are some areas into which the EEOC is trying to expand the reach of the law, contending that these screening criteria disproportionately exclude racial and ethnic minorities. I'd also recommend being careful about rejecting candidates because they are overweight or smoke. Depending on the location of the employer, these individuals may be protected. Under the Americans with Disabilities Act Amendments Act, some overweight individuals may qualify as "individuals with disabilities" or individuals who are "regarded as" having disabilities. In addition, some local laws prohibit "appearance discrimination." Many state laws prohibit discrimination against individuals who smoke off-premises during non-working time. Discrimination based on sexual orientation violates an ever-growing number of state and local laws. Although there is currently no federal law specifically addressing it (not yet, anyway), some courts have considered sexual orientation discrimination to be a form of unlawful "sex stereotyping" that violates Title VII.
6. Make sure your post-offer medical screening complies with the ADA and the Genetic Information Non-Discrimination Act. You should not be doing any medical screening pre-offer. (You aren't, are you?) If you screen individuals post-offer, you should make sure that the same screening is done for all offerees in that job classification, and that no offers are withdrawn unless you have thoroughly considered reasonable accommodation options and have determined that none are possible. Compliance with the GINA is relatively easy: just be sure that you provide the "safe harbor"* language on the medical forms that you give the offeree to take to the doctor. If you do the medical screening in-house, make sure that you are not asking the offeree for any type of "genetic information," which includes questions about family history.
This is far from an all-inclusive list, but if you monitor your performance in these areas and correct problems promptly, you will minimize your chances of being the EEOC's next hiring "test case."
*Here is the GINA "safe harbor" language:
NOTICE UNDER GENETIC INFORMATION NON-DISCRIMINATION ACT
The Genetic Information Non-Discrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
- Partner
Robin has more than 30 years' experience counseling employers and representing them before government agencies and in employment litigation involving Title VII and the Age Discrimination in Employment Act, the Americans with ...
Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act).
Continue Reading
Subscribe
Contributors
- William A. "Zan" Blue, Jr.
- Obasi Bryant
- Kenneth P. Carlson, Jr.
- James M. Coleman
- Cara Yates Crotty
- Lara C. de Leon
- Christopher R. Deubert
- Joyce M. Dos Santos
- Colin Finnegan
- Steven B. Katz
- Ellen C. Kearns
- F. Damon Kitchen
- David C. Kurtz
- Angelique Groza Lyons
- John E. MacDonald
- Alyssa K. Peters
- Sarah M. Phaff
- David P. Phippen
- William K. Principe
- Sabrina M. Punia-Ly
- Angela L. Rapko
- Rachael Rustmann
- Paul Ryan
- Piyumi M. Samaratunga
- Robin E. Shea
- Kristine Marie Sims
- David L. Smith
- Jill S. Stricklin
- Jack R. Wallace
Archives
- November 2024
- October 2024
- September 2024
- August 2024
- July 2024
- June 2024
- May 2024
- April 2024
- March 2024
- February 2024
- January 2024
- December 2023
- November 2023
- October 2023
- September 2023
- August 2023
- July 2023
- June 2023
- May 2023
- April 2023
- March 2023
- February 2023
- January 2023
- December 2022
- November 2022
- October 2022
- September 2022
- August 2022
- July 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
- December 2021
- November 2021
- October 2021
- September 2021
- August 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
- January 2016
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
- December 2012
- November 2012
- October 2012
- September 2012
- August 2012
- July 2012
- June 2012
- May 2012
- April 2012
- March 2012
- February 2012
- January 2012
- December 2011
- November 2011
- October 2011
- September 2011
- August 2011
- July 2011
- June 2011
- May 2011
- April 2011
- March 2011
- February 2011
- January 2011
- December 2010
- November 2010
- October 2010