by Eileen Curtayne, Ph.D. and Jana Moberg, HR Analysts DCI Consulting

On June 22, 2011 the EEOC hosted a commission meeting to address potential strategies for identifying and remedying disparate treatment in applicant hiring. According to the agency, although many organizations are taking proactive steps to prevent unlawful discrimination in their workplaces, disparate treatment is still a pressing concern.

Katharine W. Kores, District Director, EEOC Memphis District Office; Bill Lann Lee, Partner, Lewis Feinberg, Lee, Renaker, & Jackson, P.C. and Grace E. Speights, Partner, Morgan, Lewis & Bockius, LLP participated in the first panel discussion (“Overview of Disparate Treatment in Hiring”). Kate Boehringer, Supervisory Trial Attorney, EEOC Baltimore Field Office; Ana Lopez, Charging Party/Class Member, EEOC v. Area Temps, Inc.; Diane Smason, Supervisory Trial Attorney, EEOC Chicago District Office and Jeannette Wilkins, Charging Party/Class Member, EEOC v. Scrub, Inc. participated in the second panel discussion (“Overview of EEOC’s Litigation”). Marc Bendick, Jr., Ph.D., Bendick & Eagan Economic Consultants, Inc. and Rae T. Vann, General Counsel, Equal Employment Advisory Counsel participated in the third panel discussion (“Overview of Hiring Discrimination Research & Training”).

Panelists generally agreed that disparate treatment in hiring poses a unique problem for enforcement agencies, lawyers, and victims of discrimination because applicants frequently do not know that they have been victims of unlawful discrimination. Once an applicant submits his/her application to a hiring organization, there is rarely any feedback regarding why a particular employment decision has been made.

EEOC General Counsel David Lopez characterized the disparate treatment challenge as the result of a fundamental “asymmetry between employee and employer”. The imbalance of knowledge necessitates the EEOC’s consideration of non-traditional methods for identifying potential instances of discrimination. Some of the strategies proposed by the panelists and the commissioners included:

  1. Increased reliance on Commissioner Charges. The EEOC does not need an employee or private citizen to bring a claim against an employer. An EEOC commissioner can file a charge against an employer if there is reliable anecdotal evidence to support the charge.

  2. Examining the narratives of an individual’s claim for potential indicators of systemic discrimination in organizations. For example, if a woman files a claim of sex discrimination in a termination case and it is revealed during the course of the investigation that she was the only woman working in her department, this may be evidence of a larger systemic problem.

  3. Joining forces with outside organizations and agencies (e.g., DOJ, OFCCP, other DOL agencies) to capitalize on available resources;

  4. Investigating the utility of conducting “matched pair” inquiries. Essentially, individuals with the same qualifications but different demographic characteristics apply for the same position. The outcome of the application/interview process is then evaluated to determine whether an organization or hiring manager is engaging in discrimination. This methodology was used by both EEOC and OFCCP in the 1990s.

  5. comparing EEO1 data of similar companies (i.e. industry, size, location, etc.) as a baseline comparator to identify potentially meaningful differences in workforce composition.

Education and training regarding an employer’s responsibility under the law and the value of diversity in an organization have proven to be effective in combating discriminatory practices. However, the panelists and the commissioners emphasized a need for the EEOC and employers to expand on those efforts. In particular, concern was expressed regarding how to effectively identify and address HR professionals/hiring managers who are aware of the law, but nevertheless act to circumvent the law based either on a directive by their employer or the execution of the employee’s personal hiring prejudices. The panelists also discussed the challenge of identifying and properly training hiring managers who are unconsciously behaving in a manner that is not consistent with the law, and how to educate and provide resources for small companies that do not have an HR Department or professional on staff.

The Commission and panelists also engaged in a dialogue about the value of pursuing legal avenues and organizational remedies for holding the individual employee (e.g. hiring manager) accountable for perpetrating disparate treatment in the hiring process. Commissioner Feldblum stated that a literal reading of the statute suggests that an individual agent of an organization who engages in behavior that results in disparate treatment could be held liable for damages. Commissioner Feldblum recognized that this interpretation was not supported by case law and asked the members of panel one to discuss whether they thought holding individuals (e.g. hiring managers who are dismissive of the regulations) responsible for damages would be a worthwhile endeavor. Mr. Lee suggested that the best mechanism for individual accountability in these circumstances was likely not the law, but organizational culture and policy. The panelists suggested that companies can increase employee compliance by encouraging a “top down” culture that supports EEO and affirmative action initiatives, encourage HR professionals to interact with operations professionals, and develop accountability mechanisms within the company to address the actions of rogue hiring managers.

Additional recommended best practices for organizations to consider implementing include:

  • training recruiters and HR professionals on their responsibility to maintain accurate records;

  • adopting the use of sophisticated applicant tracking systems to detail and keep accurate records of the hiring process;

  • taking proactive steps to broaden the pool of qualified applicants;

  • providing companywide training programs on regulatory compliance and how to eliminate unconscious biases from the interview exchange; and

  • conducting proactive audits of employees (particularly HR professionals and hiring managers) on their knowledge of EEO and affirmative action regulations.

Detailed transcripts of the Commission meeting, a video of the event, and witnesses’ statements can be found here. Please contact Eileen Curtayne at ecurtayne@dciconsult.com if you have questions about this topic.

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