The EEOC is Watching: Avoid Staffing Discrimination | DCR Workforce Blog

The EEOC is Watching: Avoid Staffing Discrimination

eeoc“I don’t play favorites with people. My basic philosophy is that the only way to make the world a better place is by bringing something beautiful to every single person you run into at every moment of the day, so how can you play favorites with somebody?”, said John Zorn .

The Equal Employment Opportunity Commission (EEOC) is tasked with ensuring that all staffing companies accept this wisdom and adopt it in all transactions with the candidates they recruit and hire on behalf of clients. Eliminating recruitment and hiring practices that discriminate against racial,  ethnic and religious groups, older workers, women and people with disabilities,  is one of six national priorities identified by the EEOC’s 3 Year Strategic  Enforcement Plan. Are discriminatory hiring practices increasing or decreasing?  Is there an actual surge in cases lately, or are cases getting more attention?  As an increasing percentage of the U.S. workforce elects to pursue temporary engagements, staffing agencies must increase their efforts to ensure that their recruiters are fair and unbiased.

Discrimination against some individuals is almost an occupational hazard when hiring.  The interaction with the recruiter is bound to incorporate a subjective element, and choices are made based on such judgments. As clients stress the need for staffing agencies to find candidates that “fit” into their culture, recruiters will increasingly make assumptions regarding the candidate’s motivation and work habits. For some, it’s a slippery slope in which race, national origin, age or disability factors into the selection of the “best” candidate.

Take the case of Sedona Staffing which was fined $920,000 in six discrimination cases for failing to refer certain applicants to clients on the basis of attributes like race, national origin, gender, age or disability. The EEOC also required Sedona to retain an external consultant to review and revise its recruitment policies and procedures. The company was also forced to commit to training their recruiters in equal employment opportunity and diversity.

Most of the staffing agencies adopt anti-discrimination training programs and establish guidelines for their recruiters.  In the best programs, recruiters are trained to avoid questions and topics that could bias a decision.  However, Federal regulations do not require staffing agencies to compile data and report on the diversity of its temporary workforce.  Without this information, the agency is less likely to spot trends that could potentially indicate discriminatory practices.

Many Human Resources consultants have published lists of “Don’t go there!” questions to be avoided when interviewing candidates.  Obviously, you would want to avoid any questions regarding protected classes.  This includes questions associated with one’s race, religion, gender, age, national origin, marital status, sexual orientation, gender expression or identity, veteran or military status, and physical, mental, or sensory disabilities.  In this digital age, remember that in many states it is now illegal to ask a job applicant for their password to any personal social media accounts.

To ensure complete objectivity, Staffing agencies must go beyond the explicit legal restrictions.

  • State the expected length of the engagement and verify that the candidate is willing and able to meet that requirement, but do not ask applicant how long he/she intends to work. The candidate may interpret this question as a statement about their stability or reliability. Older candidates and women who may have young families may wonder if you are discriminating based on age.
  • Do not make assumptions regarding the profile of the client’s “desired candidate”.  Present all qualified candidates, and let the hiring manager decide.
  • Do not indicate that your client is interested in hiring a women or minority person as a statistic to improve their Affirmative Action/Equal Employment Opportunity profile.
  • Do not overly emphasize conditions of employment that may cause a candidate to withdraw from consideration.  For example, when interviewing a woman or older worker, you should ask if the candidate is capable of lifting items that weigh 40 pounds but you should not keep reminding the candidate that there is a lot of heavy lifting involved.
  • Be sure that screening process and pre-employment tests and background checks do not set any barriers based on stereotyped expectations of a specific demographic.
  • Let there be no suspicion or doubt about the hiring process being anything but fair.   Institute mechanisms for anonymous candidate feedback, and consider retaining an outside consultant to review your recruitment practices.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.