EEOC Takes Aim at Employers' Hiring Practices

July 12, 2011

By: Christa Richer Cook

Although many tend to think the days of intentional gender or race discrimination in hiring are long gone, the U.S. Equal Employment Opportunity Commission recently held a public meeting focusing on this very topic. Why is the EEOC focusing on discriminatory hiring? According to the EEOC’s press release, disparate treatment in hiring is widespread despite the fact that many employers today invest a significant amount of time and effort in diversifying their workforce in order to gain a competitive edge. The EEOC’s General Counsel, P. David Lopez, believes that minorities are unlawfully denied employment opportunities due to employers’ efforts to conform to discriminatory customer preferences, hiring managers’ reliance on prohibited stereotypes about certain jobs, and the use of narrow recruiting procedures which fail to attract a diversified applicant pool.

Over the past two years, failure to hire complaints have comprised only 6% of all charges filed with the EEOC. The most common were age discrimination cases. Yet, a plaintiff’s employment lawyer and several EEOC officials who testified at the meeting claimed that such discrimination is underreported and urged the EEOC to invest additional resources in investigation of systemic, pattern and practice cases of discriminatory hiring. A management-side attorney who testified at the hearing acknowledged the value of employer training in this area, but advised against implementing a “one size fits all” approach to mandatory training or other EEOC programs. The attorney also recommended that the Commission update its 1998 Best Practices of Private Sector Employers report.

EEOC Chair Jacqueline Berrien indicated that employers can expect the EEOC to implement more vigorous enforcement efforts targeting potential cases of disparate treatment in hiring. Specifically, we will likely see an increase in the number of EEOC-initiated charges and pattern and practice cases. EEOC investigators may also begin to more closely analyze employers’ EEO-1 and/or OFCCP reports, and rely on information gathered from their investigation of other charges in order to identify targets for investigation of possible systemic discrimination in hiring.

How can employers prepare for this enforcement initiative? While courts have recognized that employers must use subjective, business judgment when hiring employees, the use of objective criteria in evaluating applicants better ensures that selection procedures are applied in a nondiscriminatory manner. Employers will be better equipped to defend failure to hire claims if they: 1) maintain records of the hiring process, including, when possible, applications submitted through the internet; 2) provide diversity training for all employees to emphasize the importance of a diverse workforce; 3) update equal employment opportunity polices and take action against managers who fail to follow those policies; 4) conduct periodic internal audits to assess potential disparate impact in hiring practices and to ensure that employment decisions are job-related; and 5) provide up-to-date training for managers involved in the hiring process.