Technology is cool! Technology can solve
problems! All true, but if technology makes it easier to break the law,
it can create bigger problems than it solves.
Companies like Entelo and LinkedIn
advertise that they can help recruiters find diverse candidates. They use
drop-down menus and check boxes, as well as written guidance, to allow
recruiters to “select” the race or gender of a pool of potential
candidates. Facebook provides a service that allows companies to target
job announcements to particular minority groups. For industries that
struggle to recruit diverse candidates– like tech
– these services can be helpful. They make employment lawyers nervous,
however, and with good reason.
The federal, state, and local laws that prohibit
discrimination say that certain characteristics, like race and gender, can’t be
considered in the hiring process. It doesn’t matter whether the characteristics
are being considered favorably or unfavorably – they just can’t be considered
when deciding who to hire. These same laws prohibit employers from using
a selection process that disproportionately screens out applicants based on a
protected characteristic. Race and gender, among others, are protected
characteristics that cannot be considered in hiring, and employers may not use
selection processes that screen out individuals of a particular race or gender
– any race or either gender. Software that allows
recruiters to “select” and reach out to candidates of a certain race or subset
of races, such as “minority” candidates, necessarily excludes non-minority
candidates, and does so purely on the basis of their race. If that’s the
only tool a recruiter uses, the effect is discrimination. Caucasian
applicants are protected by discrimination laws just as Asian, African
American, or Latino applicants are protected. If a white male candidate never
gets considered for a job because the employer only looked at pools of
minorities, or women, or both, that candidate can successfully claim discrimination.
We can imagine some frustrated readers at this
point. “Hold on,” they say. “Isn’t hiring for diversity a good
thing?” In fact, we think hiring for diversity is a very good thing, for lots
of reasons. However, we don’t think breaking the law to accomplish
diversity hiring is a good thing, and we know it’s a risky thing.
The laws against discrimination on the basis of race or gender or religion
can’t be followed or enforced selectively.
Our frustrated reader might go on to ask, “What about
affirmative action? Aren’t we supposed to practice affirmative action?”
Most employers aren’t required to practice affirmative action unless they have
government contracts or are subject to a court order. Employers who practice
affirmative action voluntarily have to do so in a way that doesn’t result in
discrimination. Having a voluntary affirmative action program will not be an
effective defense to a discrimination claim.
What employers can do, without breaking the law, is use
the powers of technology to cast a wider net and make sure their hiring message
gets through to the groups they want to reach. What they shouldn’t do is
use technology to find or target only members of certain groups.
Some quick recruiting reminders:
1.
Select and hire based on job qualifications.
2. Use
lots of recruiting tools. Employers have many recruiting tools
available, including old fashioned newspaper and magazine ads, employee
referrals, social media and HR technology. Don’t rely only on one source
for candidates.
3. Document,
document, document. If you use tech to extend your reach to diverse
groups, document your efforts and include documentation of your efforts to
reach all qualified candidates. If a claim of discriminatory hiring is
made, you will want to be able to “show your work.”
4. Be
prepared to defend decisions. Just as employers cannot use protected
class information in making hiring decisions, recruiters cannot focus all their
sourcing efforts on finding minority candidates. Both employers and recruiters
must be prepared to discuss and demonstrate the variety of sources and tools
they used to identify candidates, as well as how candidates were selected for
further consideration.
Posted by: Judy Langevin and Kate Bischoff
