The EEOC has determined that it gets more for its money (also known as “your tax payer dollars”) by pursuing claims of “systemic discrimination” rather than claims on behalf of individual employees. Systemic discrimination involves a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area. As a result, employers should examine their hiring practices to make certain that there is not a policy or practice in place which screens out a disproportionately large number of applicants of a certain race, gender, age, national origin, religion, or other protected category.
Recently, the EEOC sued a discount tire company alleging that the company refused to hire women for various positions, such as tire installer, mechanic, assistant managers, and managers. The Commission contends that since 2008, the company has employed only one woman in these positions out of approximately 800 employees, and that no female was hired out of approximately 1,300 hiring decisions.
In another case, the EEOC reached a $3.13 million settlement with a beverage bottling company over alleged discriminatory hiring practices related to African-American applicants. The EEOC found reason to believe that the criminal background check policy used by the employer discriminated against African American applicants, because the applicants were disproportionately excluded as a result of the process. The employer’s policy prohibited the hiring of job applicants who had been arrested pending prosecution even if they had never been convicted of any offense. The policy also denied employment to applicants who had been arrested or convicted of certain minor offenses. The EEOC challenged this practice, arguing that the arrest and conviction records were not relevant for the jobs in question.
“When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position. Such exclusions can create an adverse impact based on race in violation of Title VII,” according to Julie Schmid, Acting Director of the EEOC’s Minneapolis Area Office.
So while you are spring cleaning, add a “hiring practices audit” to your list.
- Examine your hiring policies and practices to make sure the information sought is relevant to the job in issue and consistent with federal and state employment laws;
- Audit your documentation to ensure that applications are retained for the requisite time and that notations regarding applicant interviews and hiring decisions are informative and appropriate;
- Review your system to make certain that your records reflect the applicant pool for each position and the reason for selecting the winning applicant; and
- Analyze whether a disproportionate number of applicants of a protected category are being rejected for certain jobs.