Disparate Treatment Remains a Problem, EEOC Told

By Kathy Gurchiek Jun 27, 2011

The continued existence of discrimination in job hiring, and the U.S. Equal Employment Opportunity Commission’s (EEOC) examination into HR’s role in guiding organizations away from discriminatory practices was the focus of a nearly four-hour EEOC hearing June 22, 2011, in Washington, D.C.

Disparate treatment includes employers who favor one group over another, staffing agencies catering to discriminatory hiring practices of employer-clients, and what Commissioner Constance S. Barker described as evolving trends in discrimination that include people with disabilities.

HR’s role in guiding their organizations away from discriminatory practices, and the importance of training, was frequently noted by witnesses appearing before the commission.

Appearing before the commission, with links to some their written statements:

Katharine W. Kores, district director, EEOC, Memphis District Office.

Bill Lann Lee, plaintiff employment law expert at Lewis, Feinberg, Lee, Renaker & Jackson, P.C.

Grace E. Speights, defense employment law expert at Morgan, Lewis & Bockius, LLP.

M. Kate Boehringer, EEOC supervisory trial attorney, Baltimore Field Office.

Diane Smason, supervisory trial attorney, EEOC Chicago District Office.

Ana Lopez-Rodriguez. She was fired for refusing to help her former employer conceal evidence of discrimination from the EEOC.

Jeanette Wilkins, a victim of employment discrimination against African-Americans at a Polish-owned company in Chicago.

Marc Bendick, researcher of employment discrimination for Bendick & Eagan Economic Consultants, Inc.

Rae T. Vann, general counsel of the Equal Employment Advisory Council (EEAC), an employer that offers staff training on the hiring process.

​Horror Stories

The commission heard examples of how employers sometimes use staffing agencies to screen job candidates and favor one employee over another, even though the laws EEOC enforces cover employer staffing and recruiting agencies.

Lopez-Rodriguez recalled how she and other former colleagues were required to search an in-house database of photographs of their temporary workers to find the “right” type of employee in filling the employer-client’s request for workers.

Her former employer used coded file cards to indicate whether a potential staffer was a “vanilla” or “chocolate” cupcake to indicate racial differences, and “W” and “M” to indicate gender.

She was assured such practices were legal, Boehringer told commissioners, because the company was simply “giving customers what they wanted.”

“We know that is not true,” Boehringer said. “When a temporary agency complies with a customers’ request for workers of a particular race, gender or age, it has violated anti-discrimination laws.”

Afraid of losing her job, Lopez-Rodriguez followed her employer’s dictates but was fired when she did not comply with the employer’s instructions to doctor the file cards in preparation for an EEOC visit.

Commissioner Barker noted some disparate treatment in the hiring processes reflects the United State’s changing demographics, and pointed out that for some small business owners new to the United States, the illegality of disparate treatment is a foreign concept.

Vann recommended that the EEOC update its 1998 Best Practices of Private Sector Employers Report to focus on delivering effective training and professional development and provide “best in class” examples from the private sector.

However, she added, the commission should remember not all companies are able to provide identical training opportunities and that companies “should be discouraged from taking a one-size-fits-all approach in implementing EEO training.” The commission should avoid dictating specific types of programs or training curriculum “as learning needs, resources and circumstances will vary from company to company.”

Best Practices

Claimants in disparate treatment suits tend to allege that an employer’s policies and procedures for internal promotions “exclude employees in various protected categories and/or a biased manager unduly influenced the hiring process” or a promotion, Speights told commissioners.

However, Bendick noted that hiring rates of women, minorities and other groups traditionally excluded by employers “often increase dramatically” when employers adopt best practices to minimize conscious or unconscious decisions made during the hiring process.

Among best practices some of the panel members recommended for employers:

Develop strong EEO policies, train company managers on those policies and the requirements under the law, and hold managers responsible if they fail to follow the policies.

Train managers in diversity and inclusion practices.

Underline the importance of diversity in hiring and promoting by making it part of a manager’s performance review.

Expand training programs for HR professionals and managers that include teaching HR how to conduct internal investigations.

Require senior-level employees to attend training sessions to emphasize the importance of compliance and fairness.

Allow HR a greater degree of oversight in hiring. Particularly in large companies, this can help maintain an overall consistency with company policies and practices, documenting and monitoring legal compliance.

Identify and remove perceived barriers to hiring and promotion; widen the candidate pool by using resources that reach a more diverse candidate population.

Conduct periodic self-audits to determine whether employment practices are tied to job requirements, performance and business necessity.

Consider developing training and mentoring programs to reach workers of different backgrounds and experience and opportunity to qualify for promotions.

Ensure training materials are accurate, timely and practical and delivered in an engaging manner by trainers who are substantive experts and communicate effectively with an audience.

Have supervisors and managers actively monitor the workplace for potential issues and take proactive measures to reinforce the company’s EEO and nondiscrimination policy.

Vann, whose employer serves as a clearinghouse for its members on EEO/AA compliance, enforcement trends and best practices, said it’s important that recruiters and others on the front line of the hiring process are proficient in the laws and principles.

They need “to understand how hiring discrimination can occur and therefore should be provided with something more substantive than ‘awareness’ training,” she said in written testimony. Training should include practical real-life examples that reinforce Americans with Disabilities Act requirements and link practice with concepts.

The public may submit comment to the EEOC until July 7, 2011. Comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M St., N.E. Washington, D.C. 20507. Comments may be e-mailed to Commissionmeetingcomments@eeoc.gov.

Kathy Gurchiek is associate editor for HR News.


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