Recruitment Methods

There are many ways in which employers recruit potential employees. Few of the methods are inherently discriminatory. However, results and a review of why they occur are necessary for determination. Because of the potential, employers should use multiple recruitment outlets to lessen the potential exclusionary effects of one method.

For example, an ad in the town flier for a community that is predominantly Caucasian is not inherently discriminatory. It is likely to result in a recruitment pool that is mostly Caucasian. The recruitment effort should include a method that reaches a more diverse group. If that is not done, reliance on the local town flier could be considered an attempt to exclude minorities.

An advertisement for RNs, is unlikely to attract many male applicants as 87.7% are female.  Like the previous example, this is not intentionally discriminatory, though it results in a predominantly female recruitment pool.  The outcome is not due to discriminatory practices, but rather the nature of a field like nursing, where female representation is dominant. There are other professions where there is limited representation for some ethnic groups, such as neurosurgeons and attorneys, and others where one gender is dominant, such as plumbers and engineers. We will consider statistics and their use in cases alleging discrimination.

 

Want Ads and Job Announcements

When a job is available, its availability, description and requirements must be made known to prospective applicants. Previously, employers were heavily reliant on newspapers, bulletin boards and trade publications to advertise a position. Increasingly, the Internet is used. Sites such as LinkedIn, ZipRecruiter, and CareerBuilder cannibalize the offerings from other sites and even reverse the process by targeting people who might be qualified or interested.

The federal government uses USAJOBS, while states and municipalities have their own sites. The federal government's process of opening a position to a wider recruitment pool than the department in which it exists reinforces the value of using multiple sources. Ads limited to a bulletin board in a plant where most of the workers are of one ethnicity will likely result in applicants of the same ethnicity.

Decades ago, positions in auto plants and at utility companies were made known to only those already working there - which resulted in multiple generations of employees from the same families. That equates to being of the same ethnicity. Such practices are exclusionary.

EEOC requirements concerning job postings include:

It shall be an unlawful practice for an employer . . . to print or publish or cause to be printed any notice or advertisement related to employment . . . indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin. (42 U.S.C.S. 2000e - 3(b) (2017))

The U.S. is robust in its protections based on protected classes. Here, want ads must be neutral. Gender-based words such as waitress or seamstress should not be used. A requirement for "young go-getters" would not pass review by the EEOC. "Recent college grad" can be problematical, though some positions target those groups - such as associates at law firms. Further, some "recent college grads" are 40+. The Age Discrimination in Employment Act does not permit disparate impact claims by applicants.

In the EU, specifications concerning gender or age preference sometimes appear in ads and are legal. Also, there are mandatory retirement ages in most EU countries. In Hong Kong China, an ad indicating that applicants must be Chinese, female, and 21-28 is acceptable.

The most important thing is that wording of ads must be neutral with no indication of preference based on age, gender, ethnicity, citizenship or national origin.

 

Employment Agencies

Employment agencies are covered by antidiscrimination laws and are expressly prohibited from advertising for positions or making referrals in a discriminatory manner. It is naïve to hold that some customers served by employment agencies will not make preferences known or that none will accede to those demands. It is nonetheless illegal per the EEOC.

EEOC enforcement cases against employment agencies have involved code terms for applicants over 40 and refusals to consider African American applicants. Foreign-based companies can limit certain executive positions to their own ethnicities per international trade agreements, but they cannot discriminate when filling other positions.

Aside from those limited exceptions, employment agencies cannot defend against discriminatory practices based on the preferences of their customers. Nor can agencies lawfully serve as filters for applicants based on discriminatory preferences.

 

Nepotism and Word-of-Mouth Recruiting

Civil service laws prohibit nepotism, which can be defined as favoring friends, relatives, or associates when hiring. It is discouraged by many large private-sector employers, though not uncommon among smaller employers.

The reasons for the practice are not difficult to comprehend. A position is available; a relative needs a job. Presto! No recruiting costs are incurred and some knowledge about the work ethic of the family is had. The problem is that new hires from the same family as people already working for an employer will be similar - if not identical - as to protected class characteristics. Most often, that has worked against inclusion of African Americans in a workforce.

Word-of-mouth is a process where knowledge about job openings is disseminated by current employees. That system limits the recruitment pool to family and friends. As with nepotism, it excludes members of other protected classes and may be considered a discriminatory form of recruiting.

Unions that require apprentices or new members to be sponsored can have the same outcomes if the membership is not diverse.

Unless the demographics of a region are skewed or diversity is difficult to achieve based on the percentages of applicants qualified for a position, outcomes say it all. Absent those factors, a lack of diversity in a workforce is a function of recruiting methods that warrant review.

 

Enlisting Day Laborers

Day laborers assemble in parking lots near stores like Home Depot and Lowe’s or on street corners. Most big cities have such a place. The services sought are usually reliant on a proverbial strong back.

Undocumented immigrants not authorized to work in the U.S. are often among those gathered. Many of the arrangements work out fine; however, others result in no payment, dangerous work conditions, no breaks, abuse and untreated injuries. Obviously, the system is informal. Many of the workers are reticent to seek redress because of their illegal status. Some have outstanding warrants. Some mistrust government officials or police officers.

The U.S. Constitution prohibits government restrictions on the rights of people to gather, however, municipalities have attempted to limit assemblages of people looking for day work. Is the cure worse than the disease? By eliminating gathering places, the ability to earn a few dollars is also taken. That does not excuse the overarching factors that make day labor an option for some. Until those factors are resolved, it replaces one mean option with another.

An example of a situation in which a city tried to limit assemblies of people is in the upscale city of Danbury, Connecticut. A cruel stunt was put into play, where a police officer offered work to a group of eight day laborers, got them in a van, and took them to the station to be arrested. $400,000 was paid as a result of this event.