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Recruiting/Screening Practices

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in Discrimination and Harassment,Hiring,Human Resources

In 2007, the EEOC introduced E-RACE, an initiative for “Eradicating Racism And Colorism from Employment.” The initiative’s goal: to eliminate recruiting and hiring practices that lead to discrimination by limiting an employer’s applicant pool.

The EEOC noted that the makeup of an employer’s workforce is “highly dependent on how and where the employer looks for candidates.” Employers that recruit from homogeneous sources (such as certain neighborhoods, schools, religious institutions or social networks) may be subject to discrimination charges.

For example, if you usually recruit at a college with few black students, the EEOC expects you also to recruit at predominantly African American colleges to reflect the diversity of the qualified labor force. The agency is also targeting word-of-mouth referrals, which tend to multiply underlying disparities in an employer’s workforce.

As the EEOC further observed, using names, criminal records and credit scores during screening can result in racial discrimination:

Names: The EEOC is on the alert for “name discrimination.” A person’s name often reflects his or her cultural or racial background. Studies show that people who submit résumés and applications with names common among whites are 50% more likely to land interviews than those with names common among non-whites. The EEOC says, ‘‘We’ll be looking at ethnic names and whether employers are using them to make the first cut, especially in Internet applications.”

Criminal records: The EEOC has long taken the position that, unless consistent with “business necessity,” hiring decisions based solely on arrest or conviction records, as opposed to the underlying offense, are discriminatory. An employment practice is considered consistent with business necessity if it’s genuinely related to job performance. So, if the conduct underlying an arrest or conviction record indicates that the applicant isn’t suited for a particular job, you may base your hiring decision on that conduct.

However, according to the EEOC, the employer must also consider the likelihood that the applicant actually engaged in the conduct. That’s where the difference between arrests and convictions comes into play: Employers may not simply assume that an arrest means the applicant committed a crime. Rather, an employer must give the applicant a chance to explain the circumstances of the arrest before making an employment decision.

Even in the case of a conviction, an employer must consider three factors: (1) the nature and gravity of the offense, (2) the amount of time that has passed since it was committed and (3) the nature of the job held or sought. This analysis is highly fact-specific. For guidance on using criminal records to screen candidates, see EEOC Enforcement Guidance.

Credit scores: The EEOC believes many employers use credit reports to screen out applicants without justification. It has flatly stated that, absent business necessity, credit checks exclude too many black and Hispanic applicants to pass muster under Title VII. Employers that rely on credit history to screen applicants for positions with no financial responsibility must be prepared to demonstrate a specific, objectively reasonable business justification for doing so. 

Historically, the EEOC has frowned on the recruiting and hiring practices targeted under E-RACE. But E-RACE represents a dramatic turn in the EEOC’s focus toward rooting out more subtle forms of workplace discrimination.

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