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Hiring Discrimination: An EEOC Focal Point in 2013 and Beyond




by:
Sean P. Beiter
Goldberg Segalla LLP - Buffalo Office

Seth L. Laver
Goldberg Segalla LLP - Philadelphia Office

 
January 10, 2013

Previously published on January 9, 2013

On December 17, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) approved its strategic enforcement plan for 2013-2016. That plan identified the EEOC’s priorities and intended focus over the next few years. Topping that list is the EEOC’s goal to eliminate barriers in recruitment and hiring.

It may come as a surprise that some employers openly engage in prohibited hiring decisions based on gender, national origin, race, or age. Take, for example, the EEOC’s class discrimination lawsuit against an Ohio temp agency that allegedly developed a series of code words for applicants based on their race, sex, national origin, and age. The EEOC charged in its lawsuit that the temp agency considered and assigned these codes to assist in hiring decisions. Allegedly, the temp agency utilized codes such as “figure skater” to refer to white women and “basketball player” for African-American men. Two former employees were allegedly terminated for refusing to comply with the company “code” policy. The temp agency agreed to pay $650,000 to resolve the dispute.

Similarly, and more recently, a staffing agency in Texas allegedly terminated its human resources director for objecting to its use of codes to fill placement requests. According to that complaint, the agency allegedly utilized “heavy lifting” to refer to men, “energetic” to exclude older applicants, and “blue eyes” to exclude African-American applicants. That litigation is pending.

In 2013, and beyond, the EEOC will target similar allegations in an attempt to eliminate discriminatory hiring decisions. All employers should take heed and reevaluate hiring criteria. Obtain assurance from all involved in the hiring process that such decisions are entirely business-related pursuant to a well-documented and circulated policy.

Social media also plays a role in hiring decisions and the avoidance of hiring discrimination. Online sources such as Facebook and LinkedIn provide employers with perhaps too much information — or, in most cases, more information than would be available by a resume. Query which employer is more susceptible to a discrimination complaint: (a) the employer who rejects an applicant after a telephone interview and review of a resume or (b) the employer who rejects an applicant after a telephone interview, review of a resume, and perusal of the applicant’s Facebook page. In the first example it is likely that the employer would not be aware of the applicant’s race, nationality, age, or whether the applicant has a disability, all of which could be inadvertently discovered in a single Facebook photograph. Again, employers must maintain clear hiring criteria that incorporates a policy on accessing social media during the hiring process — particularly now that the EEOC is targeting these claims.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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