Avoiding Discrimination and Legalities within the Hiring Process

1. Introduction to Legal Aspects of Recruitment

Avoiding discrimination in the recruiting process isn’t only a matter of refraining from both intentional and unintentional discrimination. Companies are also prohibited from using screening or testing practices that adversely impact a protected group. In this section, we will discuss aspects of discrimination and how to evaluate the use of employee screening and testing practices to avoid discrimination under Title VII, the ADA, and ADEA.

1a. Preventing Discrimination in the Hiring Process

To prevent discrimination in the recruiting process, human resource personnel must review recruiting policies and procedures to ensure compliance with federal discrimination laws. Employers should evaluate their advertising, recruiting, screening, testing, and selection techniques to avoid both intentional discrimination and practices that negatively affect protected groups.

The EEOC states that it is illegal for an employer to publish a job advertisement that shows a preference for or discourages someone from applying based on race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability, or genetic information.

EXAMPLE

Job ads specifying “male” or “female” or using language like “recent college graduate” or “retiree” may violate the law (EEOC).

With the rise of social and employee-supported recruiting, it’s important to note the potential danger of employee referrals. Specifically, it’s illegal for an employer to engage in recruiting practices that have a discriminatory impact. For instance, if an employer relies on word-of-mouth recruitment by its mostly Hispanic workforce, resulting in most new hires being Hispanic, this practice may violate the law.

According to the EEOC’s Employment Tests & Selection Procedures Fact Sheet, tests and other selection procedures can be effective in determining the most qualified applicants (EEOC). However, these tools can violate federal anti-discrimination laws if used to intentionally discriminate based on race, color, sex, national origin, religion, disability, or age. They can also violate these laws if they disproportionately exclude people in a particular group unless the employer can justify the test or procedure under the law.

Title VII of the Civil Rights Act of 1964 permits the use of employment tests unless they are designed, intended, or used to discriminate based on race, color, religion, sex, or national origin. Employers are also prohibited from using different standards or altering the results of employment-related tests based on these characteristics. Title VII applies to both external and internal recruiting and selection, such as transfers or promotions.

In a previous lesson, we learned about disparate treatment, intentional discrimination, and disparate impact, unintentional discrimination. As a reminder, Title VII prohibits both disparate treatment and disparate impact discrimination based on race, color, religion, sex, or national origin.

In regard to hiring, disparate treatment involves treating candidates differently based on these characteristics, such as testing the reading ability of Hispanic or Latino candidates but not white candidates. To review practices for potential violations of the disparate treatment clause, ask:

• Are candidates of different races, colors, religions, sexes, or national origins treated differently?
• Is there any evidence of bias, such as discriminatory statements or written comments?
• Can any difference in treatment be justified under the law?

EXAMPLE

A hiring practice causes disparate treatment by requiring only female candidates to take a physical fitness test while exempting male candidates. This practice treats candidates differently based on gender, leading to unfair discrimination.

Disparate impact discrimination involves using tests or selection procedures that disproportionately exclude persons based on race, color, religion, sex, or national origin and are not job-related and consistent with business necessity. To review practices for potential violations of the disparate impact clause, ask:

• Do required tests disproportionately screen out members of protected groups?
• If there is a disparate impact, can it be justified as necessary for the safe and efficient performance of the job? The skills tested must be specifically related to the job.
• Is there an alternate means of evaluating job-specific skills that is equally effective in predicting job performance without disproportionately excluding protected groups?

EXAMPLE

A hiring practice causing disparate impact might use a physical strength test for all job applicants, even if it is not required for a specific job, which disproportionately excludes female candidates. If the test is not essential for the job, it unfairly impacts a specific group, leading to unintentional discrimination.

The Griggs v. Duke Power Co. case was decided by the Supreme Court in 1971. At issue in this case: whether Duke Power Company’s internal transfer policy, which required both a high school education and passing scores on two separate aptitude tests discriminated against African American employees in violation of Title VII of the 1964 Civil Rights Act.

did you know

The Supreme Court found that Duke’s standardized testing requirement did constitute discrimination, finding that “Duke’s standardized testing requirement prevented a disproportionate number of African American employees from being hired by and advancing to higher-paying departments within the company." Specifically, the court held that “neither the high school graduation requirement nor the two aptitude tests were directed or intended to measure an employee’s ability to learn or perform a particular job or category of jobs within the company” but rather, “the purpose of these requirements was to safeguard Duke’s long-standing policy of giving job preferences to its white employees.” This case established the legal precedent for disparate impact lawsuits based on racial discrimination (Encyclopedia Britannica).

Policies and procedures should also be reviewed to ensure compliance with ADA which prohibits discrimination against qualified individuals with disabilities (ADA, 1990). Testing procedures should be reviewed to determine whether they tend to screen out individuals with specific disabilities or disabilities in general. Employers must ensure that tests accurately reflect an applicant’s job-related aptitude or skills, not their impairment. Employers are also required to make reasonable accommodations for known physical or mental limitations unless such accommodation would impose an undue hardship.

EXAMPLE

Providing a sign language interpreter for a deaf candidate during employment testing is an example of a reasonable accommodation. This ensures the candidate can fully participate and understand the discussions and instructions, enabling them to perform the test to the best of their abilities.

Another important piece of legislation in regard to hiring is the ADEA, which prohibits discrimination based on age (ADEA, 1967).

Similar to Title VII and the ADA, the ADEA prohibits employers from using tests or selection procedures that have a discriminatory impact on persons 40 or older unless the evaluation is based on a reasonable factor other than age.

EXAMPLE

Requiring applicants over the age of 50 to take agility or cognitive tests while applicants under 50 are not tested.

terms to know

Employee Referral

When a current employee recommends someone they know for a job opening at their company.

Griggs vs Duke Power Co.

Court ruling that employment tests must be job-related and not unfairly disadvantage minority groups.

1b. State and Local Laws

In addition to federal laws, employers must also comply with state and local regulations during the hiring process. These laws can vary significantly and may provide additional protections beyond federal requirements. For instance, some states and cities have “ban the box” laws that prohibit employers from asking about criminal history on job applications. Others may have specific requirements for accommodating disabilities or protecting against discrimination based on sexual orientation and gender identity.

Employers should stay informed about these local regulations to ensure their hiring practices are fully compliant. Ignoring state and local laws can lead to legal challenges and damage to the company’s reputation. By adhering to all relevant laws, employers can create a fair and inclusive hiring process that attracts a diverse and talented workforce. Regularly reviewing and updating policies to reflect changes in the law is essential for maintaining compliance and fostering a positive work environment.

term to know

“Ban the Box” Laws

Laws prevent employers from asking about criminal history on job applications, allowing candidates to be judged first on their qualifications.

2. Avoiding Bias in the Hiring Process

Avoiding bias in the hiring process is crucial for creating a fair and inclusive workplace. Bias can creep in at various stages, from job analysis to the final selection, and it can significantly impact the diversity and quality of your hires.

Starting with job analysis, ensure that the job descriptions are clear, specific, and free from language that might deter certain groups from applying. For instance, using gender-neutral language and focusing on the skills and qualifications necessary for the job rather than personal characteristics can help attract a diverse pool of candidates.

IN CONTEXT

A local construction company is seeking a candidate for a construction role, and they are developing job summaries to post on an employment site.

Biased Job Summary:

EXAMPLE

Looking for a strong, young man to join our construction team.

Unbiased Job Summary:

EXAMPLE

Seeking a skilled construction worker with experience in building and site management.

Notice that the unbiased summary focuses on the skills and experience required for the job (“experience in building and site management”), avoiding any language that could exclude certain groups (“strong”, “young”, and “man”).

When it comes to sourcing candidates, it’s beneficial to use a variety of channels to reach a broad audience. Relying solely on referrals or traditional job boards can limit the diversity of your applicant pool. Consider using social media, professional networks, and community organizations to cast a wider net.

During the screening process, use standardized criteria to evaluate candidates. This means developing a set of objective criteria based on the job requirements and applying them consistently to all applicants. Automated tools can help with this, but it’s important to ensure that these tools are free from biases themselves.

In the selection phase, structured assessments and tests can provide objective data on candidates’ abilities and fit for the role. These assessments should be validated to ensure they are fair and relevant to the job. Additionally, involving multiple people in the decision-making process can help mitigate individual biases. A diverse hiring panel can provide different perspectives and help ensure a fair evaluation of each candidate.

Finally, it’s important to continuously review and refine your hiring practices. Collecting data on the outcomes of your hiring process and seeking feedback from candidates can help identify areas where bias may still be present. Regular training on unconscious bias for everyone involved in hiring can also help maintain awareness and commitment to fair hiring practices.

big idea

Avoiding bias in the hiring process is essential for fostering a fair and inclusive workplace, which can be achieved through clear job descriptions, diverse candidate sourcing, standardized screening, structured assessments, and continuous review and training.

term to know

Bias

Preconceived notions or preferences that can cloud our judgment.

3. Documentation and Record Keeping

Documentation and record keeping help ensure that the hiring process is transparent, consistent, and legally compliant. When we talk about documentation, we’re referring to all the records generated during the recruitment process. This includes job descriptions, interview notes, candidate resumes, and correspondence with applicants. Each piece of documentation serves a purpose, from tracking the progress of candidates to providing evidence in case of disputes.

Keeping proper documentation creates a structured and organized recruitment process. By keeping detailed records, HR professionals can easily track where each candidate is in the hiring pipeline. This not only streamlines the process but also ensures that no candidate is overlooked. Documentation is also crucial for legal compliance.

key concept

Employment laws often require employers to keep certain records for a specified period. These records can be vital in defending against claims of discrimination or unfair hiring practices.

Knowing what to keep is just as important as knowing why to keep it. Essential documents include job postings, applications, resumes, interview notes, and any communication with candidates. Additionally, records of background checks and reference checks should be maintained. These documents provide a comprehensive view of the recruitment process and can be invaluable for future reference.

As for where to keep these records, it’s best to use a secure and organized system. Many organizations use digital applicant tracking systems (ATS) to store and manage recruitment records. These systems not only keep documents safe but also make them easily accessible when needed. For smaller organizations, a well-organized filing system, whether digital or physical, can suffice. The key is to ensure that records are stored securely and can be retrieved quickly when necessary.

Recruitment paperwork should generally not be placed in an employee’s personnel file (Indeed). Instead, these documents should be kept in a separate recruitment file. This helps maintain the confidentiality and organization of personnel records.

Personnel files are typically reserved for documents that pertain directly to an employee’s ongoing employment relationship with the company. This includes items like job descriptions, employment contracts, performance evaluations, and disciplinary records. Keeping recruitment documents separate ensures that personnel files remain focused on the employee’s current status and performance, making it easier to manage and access relevant information. The exception would be the individual’s job application, cover letter, resume, and education verification.

did you know

Under Title VII of the Civil Rights Act of 1964, employers must keep these personnel records for at least one year. The Age Discrimination in Employment Act and the Americans with Disabilities Act also mandate a one-year retention period. However, if you are aware that an applicant is over 40 years old, it is advisable to keep their records for up to two years (EEOC, 2022). If your organization is a federal contractor with at least 150 employees or a contract of $150,000 or more, you are required to retain these records for two years. However, there are a number of laws that impact file retention, some requiring up to 30 years, so it is important that you fully understand file retention requirements before you start purging files.

REFERENCES

"Prohibited Employment Policies/Practices." U.S. Equal Employment Opportunity Commission. https://www.eeoc.gov/prohibited-employment-policiespractices

"Employment Tests and Selection Processes." The U.S. Equal Employment Opportunity Commission. https://www.eeoc.gov/policy/docs/factemployment_procedures.html

Congress. (July 26, 1990). Americans With Disabilities Act of 1990. Public Law 101-336. 108th Congress, 2nd session. https://www.congress.gov/bill/101st-congress/senate-bill/933/text

Congress. (June 12, 1968). Age Discrimination in Employment Act of 1967. Public Law 90-202. 90th Congress. https://www.congress.gov/bill/90th-congress/senate-bill/830/text

“Griggs v. Duke Power Co.” Encyclopedia Britannica. Encyclopedia Britannica, inc. Accessed September 17, 2019. https://www.britannica.com/event/Griggs-v-Duke-Power-Co

Biddle. (2024). "Uniform Guidelines on Employee Selection Procedures." Biddle. https://www.uniformguidelines.com/uniform-guidelines.html

U.S. Equal Employment Opportunity Commission. (2022). The Age Discrimination in Employment Act of 1967 | U.S. Equal Employment Opportunity Commission. Www.eeoc.gov. www.eeoc.gov/statutes/age-discrimination-employment-act-1967

Keeping Personnel Files: Best Practices and What to Include. (n.d.). Indeed. www.indeed.com/hire/c/info/personnel-files