Thursday, March 31, 2011

Employers Beware: The EEOC's Stance on Requiring Use of Technology in the Hiring Process


As I wrote about earlier this week, Campbell Mithun made waves last week when the Minneapolis-based advertising agency announced the selection of six summer interns recruited through a Twitter contest. Although few employers are bold enough to commit to making all of their new hires from social media, increasing numbers of employers are turning to the Internet and social networking sites to recruit employees. And why shouldn't they? Employers recognize the power of online tools to find and recruit the best possible candidates.

However, many employers may be surprised to learn that the U.S. Equal Employment Opportunity Commission takes the position that employers may violate discrimination laws when they require applicants to use technological application processes. As a part of its E-RACE Initiative (which stands for "Eradicating Race and Colorism in Employment"), the EEOC has brought several high-profile lawsuits against employers with policies that the agency believes lead to systemic discrimination in hiring. Although the E-RACE cases brought by the EEOC have so far focused on employer background check policies, the EEOC has announced its intent to pursue employers that require applicants to use video résumés or other technological application processes. According to the EEOC, these practices can lead to both intentional discrimination and “disproportionate exclusion of applicants of color who may not have access to broadband-equipped computers or video cameras.”

So what does the E-RACE Initiative mean for employers? Employers should, as always, avoid making decisions—or even the appearance of making decisions—on the basis of protected class status. To defend against the disparate impact claims anticipated by the EEOC, employers must also be able to show that the required or favored technological application process at issue was justified by "business necessity." For example, an advertising agency like Campbell Mithun would argue that the nature of the advertising business requires hiring interns with social media savvy. It might be difficult, however, for an employer like Campbell Mithun to demonstrate that business necessity required the use of technological application processes for hiring clerical or maintenance staff at the agency. As a result, the safest course for employers is to avoid requiring or favoring the use of technological application processes unless the process is closely related to the requirements of the job advertised and justified by legitimate and important business needs.

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