Discussions of workplace discrimination often center on actions that occur during someone's time as an employee. But workplace safeguards extend to the hiring process as well, and it's illegal for employers of a certain size to discriminate against applicants due to their protected characteristics, like race, ethnicity, gender or religion.
Many job descriptions will note that the hiring company is an “equal opportunity employer.” But what does that really mean, and how do you recognize a company with truly actionable diversity, equity and inclusion (DEI) goals?
A heighted EEOC focus on inclusive hiring
Just this January, the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) announced a new initiative focused on hiring inclusivity.
After the Black Lives Matter protests of 2020 and the retention challenges companies have faced during the pandemic, there's more pressure than ever on businesses to reexamine their hiring practices. The EEOC and OFCCP's new program aims to ultimately guide companies toward more equitable hiring through evidence-based recommendations.
But the initiative will do more than just educate leaders and hiring managers. It signals the EEOC's commitment to pursuing hiring-related discrimination suits against companies that violate the law.
What does inclusive hiring look like?
When excusing their limited diversity, businesses sometimes blame the talent pipeline or a lack of qualified applicants. Companies truly committed to DEI goals, however, understand that by broadening their networks and identifying their biases, they have the opportunity to strengthen their companies with new perspectives. This also better protects them against possible hiring discrimination charges by limiting chances for missteps.
Inclusive hiring starts with the job description. Companies might ask:
- Does the description focus on skills instead of just personality attributes?
- Is it accurate, and are there some skills that can be learned on the job?
- Is it posted in different places where people from different communities will see it?
Next, employers will want to look at the hiring process, asking:
- Are applications stacked up against a hypothetical ideal candidate profile, or are they compared to a recruiter's preconceived and unstated notions of who the company is looking for.
- How are candidates treated at all stages of the interview process?
After hiring, it's up to the company to create and provide a welcoming culture that retains diverse talent. The business might ask:
- Does the company recruit broadly and promote internally for all position levels? Is there opportunity for diversity in leadership?
- Are there mentoring programs and mental health policies that support all employees?
- When discrimination or poor behavior comes up, what happens? What if it's at the management or executive level?
When you've been the victim of hiring discrimination
While perceptive businesses know that they'll likely be held accountable for their hiring practices—either to the public or in court—others will continue to discriminate based on protected characteristics.
Proving discrimination in hiring can be challenging, however. Unless an employer states that you were not hired because of your race, sex, LGBTQ status or other protected characteristic, it will take an employment lawyer to uncover a pattern of discrimination or show that other candidates were held to a different standard.
For example, the EEOC recently sued Performance Food Group for failing to hire women in certain positions. The EEOC also settled a class action suit against UPS for denying positions to applicants whose religious grooming practices conflicted with the company's appearance policy.
At Barrett & Farahany, we are happy to answer any questions about your situation. Please contact us to speak to one of our attorneys.