How to stay out of trouble with federal agencies!

Did you know that last year (2007) the Equal Employment Opportunity Commission (EEOC) clarified the prohibition of discrimination in the areas of recruiting, hiring and promotion?  You may say, so what? How does it affect how I go about my business of recruitment?  And so, what if I do not care to follow the guidance?

You already know how to conduct your business, so why is EEOC making a fuss? You knew that merit recruitment and selection processes must be made open to any person who feels that they meet the requirements of the post. You also knew it must be competitive in that all applicants must be assessed comparatively and against the specification for the post. Finally, you already knew that the selection must be performance based, in other words, the sole criterion for selection must be based on merit. Ok, so far, so good.

You already knew that absent a bona fide occupational qualification, you cannot use race color as a job requirement in an advertisement for a job opening. So, what is so significant about this guidance? 

Never stated before, the new guidance provides examples of subtle actions that may also violate race discrimination prohibition. Some of this guidance you may regard as “common sense”:

1. You may not conduct recruitment based solely on word-of-mouth referrals, as this method creates a limited applicant pool that does not include qualified diverse individuals.
2. You may not use screening criteria that implicate race such as disqualifying candidates from specific neighborhoods in order to filter the applicant pool.
3. You may not recruit exclusively from homogenous sources, such as predominately white or black schools or areas.

So, what else is new?  Most insiders believe that the EEOC is simply attempting to encourage recruiters and employers to examine their unconscious biases present in the search process.  Fair. So, how do you examine your unconscious biases?  There is a great source of information on this subject at: https://implicit.harvard.edu/implicit/demo/. Take the challenge. It is called the Implicit Association Test. Even the most liberal persons I know have become surprised at the results. I was. My “aha moment” was realizing that my bias is so entrenched in my psyche, so hidden from view that I needed scientific proof of it to believe it. Bias lives in our “blink” moments, usually hidden from view. Scary thought. So, do I use my bias in my every day deliberations without knowing it?  Yes. 

Armed with this new awareness, my quest became finding out what can I do to “de-bug” my psyche from vestiges of discrimination. My partial solution was to learn more. The EEOC indicated they have experienced a substantial increase in discrimination claims based on “color,” which jumped from 374 in 1992 to 1241 in 2006. I wondered how many of these cases occurred during the initial phase of employment such as search and hire?  How can I contribute to reverse this trend or at least slow it down?

It occurred to me that if professionals involved in the sourcing, search, recruitment and hire processes become more aware of their implicit biases we may be able to arrest this trend. By acting responsibly in our processes we can have a direct impact and help reduce the disturbing EEO reports. This negative trend my also be arrested if we become more informed about the legal basis of recruitment and how crucial this is to doing what is right. The answer is to get compliance training. Not all compliance training is dense. It can be fun, too!

It is also imperative that the recruitment community joins forces with companies in talent acquisition strategies. As a result of the available computer-based focused search mechanisms and the potentially biased internet search processes, the EEOC and the Office for Federal Contract Compliance Programs (OFCCP) refocused their compliance efforts by placing emphasis on systemic employment discrimination. This means that in order to stay ahead of the game third-party recruitment firms and companies may need to consistently articulate for each job search, job-related criteria which is consistent with business necessity. Ultimately, the industry needs to defend its choices by justifying they adopted -for each job search- alternative employment practices that satisfied the employer's legitimate interests without having a disparate impact on a protected class. Since systemic discrimination can happen at any stage of the search and hire processes, companies and third party recruitment firms need to:

1. examine their processes from sourcing candidates to interviews to hiring,              
2. articulate the criteria used at each stage of the process and                   
3. just as important: document it. Now, more important than ever it is for companies to make sure they are equipped with compliant applicant tracking systems (ATSs) to track candidates electronically as they flow through each recruitment stage, from sourcing to hire. This is especially so for federal contractors because sub-contracting with sourcing and recruitment third-parties do not relieve them from their OFCCP’s obligations. If a company is ever audited by the EEOC or the OFCCP, their failure to provide adequate recruiting records can be considered an attempt to conceal evidence of discriminatory practices.

Bottom line, unexamined practices can be a time bomb. Innocent practices may land you a law suit. Unintentional systemic employment discrimination is considered just as bad as intentional systemic discrimination. To avoid unintentional disparate impact challenges, you are best suited to examine your personal implicit biases, learn more about the legal basis of affirmative action and equal opportunity and finally, by developing the most self-audited, scrutinized and systematic business practices. Following government guidelines protects you from liability. In this process you also can discover synergies that will help you discover breakthrough business practices that will keep you competitive and above reproach. A job well done may just be the best sign of survival and excellence in competitive markets.

Biography 

Conchita Franco Serri, an employment discrimination and employment practices expert, has over sixteen years of Human Resources experience specializing in employee and labor relations, equal employment opportunity and affirmative action compliance. 

She is President of Serri Compliance Training. In her capacity as consultant, trainer and coach, she partners with business executives seeking solutions to complex issues of gender, race, ethics and leadership. In her investigative capacity, she successfully investigated and mediated over two hundred charges of unlawful discrimination, harassment and retaliation which resulted in no litigation.  

She is the former Director of Affirmative Action and disabilities compliance officer at Santa Clara University for 15 years where she was the principal investigator and mediator of civil rights violations. Conchita is a disabilities expert in the area of reasonable accommodations, disability policy and performs Section 504 compliance audits for places of public accommodations, specializing in independent living facilities, residential care facilities, skilled nursing facilities and acute care centers, HUD’s Section 8 Senior Housing facilities, and Board and care homes. She can help these establishments qualify to obtain loans and grants and for California State insurance funds, comply with federal and state laws, limit their exposure to liability and maximize their marketing efforts. 

She is a graduate of Harvard University’s Graduate School of Education where she obtained her Masters Degree and Boston College Law School where she obtained her law degree.  Her most recent peer-reviewed article is entitled: “Self-Compassion and the Dynamics of Investigating Sexual Harassment”, which was published in the Business Communication Quarterly, December 2006. 

She is a published author and the recipient of CHOICE Outstanding Academic Book of the Year, 1997 for “Notable Latino Americans: A Biographical Dictionary”, a Greenwood Press publication. She enjoys dancing Argentine tango and watching foreign films.  She can be reached at: conchita@serricompliance.com

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