Many in the employment law community expressed surprise at the Equal Employment Opportunity Commission’s topic for the June 22, 2011 meeting: Disparate Treatment in Hiring.  Long gone are the days of overt gender and race discrimination in hiring. Well, aren’t they?

According to the Commission, sort of. American business has come a long way, but the EEOC claimed that there is more work to do. “Forty-five years after the Civil Rights Act of 1964, [the EEOC] still receives meritorious charges on hiring discrimination,” said EEOC Chair Jacqueline Berrien. She continued, “The EEOC will continue to address this problem through enhanced education and outreach and through vigorous enforcement of the law.” Commissioner Constance Barker echoed the Chair’s sentiments, stating “discrimination is evolving” and asked the panelists to weigh in on how the Commission can combat modern hiring discrimination.

The meeting was divided into three panel discussions: “Overview of Disparate Treatment in Hiring,” “Overview of the EEOC’s Litigation,” and “Overview of Hiring Discrimination Research & Training,” to discuss the following EEOC observations on hiring discrimination:

1. Hiring discrimination is underreported because applicants do not have access to who was hired, applicant pool information or the employer’s workforce makeup;
2. Discrimination against individuals with disabilities still occurs in situations where an employer is unwilling to overcome assumptions on abilities and reasonably accommodate a disability;
3. Discrimination may occur through client employers’ use of employment or temporary staffing agencies who are not subject to EEO 1 Survey reporting requirements; and
4. Systemic discrimination is not necessarily reflected in an employer’s often neutrally written policies.

Hiring Discrimination is Underreported

Katherine Kores, an EEOC District Director, testified that only 6% of EEOC charges allege hiring discrimination. EEOC General Counsel P. David Lopez and EEOC trial attorney Kate Bohringer both opined that hiring discrimination cases are underreported because it is unlikely the applicant will know why they were not hired for a particular position, or the relative qualifications of the individual hired in their stead. The Commissioners, EEOC panelists, and plaintiffs’ bar panelist also stressed the important of role of the EEOC in this area, pointing to the fact that private attorneys also operate with little or no information from which to evaluate a potential client’s claim. Ms. Bohringer further testified that, in the case of staffing companies especially, the applicant may be placed in a different position, and thus never even consider the possibility that discrimination occurred.

Ms. Bohringer urged the Commission to continue the current “expanding investigation” trend, where EEOC investigators look not just at a charging party’s claims, but actively search for other ways employers could be discriminating. For example, if an African American employee files a harassment charge, and is the sole African American worker, Ms. Bohringer believes the Commission has a “duty” to expand the investigation and find out why the charging party is the only African American employed.

Notably, Commission witnesses and some Commissioners seemed receptive to increased investigation expansions, and neither the Commission, nor any panel member, addressed the often unwarranted and always burdensome nature of such expanded investigations.
Commissioner Stuart Ishimaru suggested utilizing the EEO 1 Survey data as a means of evaluating employer hiring practices. He noted that the Commission does not need a charging party to begin an employer investigation. If an employer’s hiring data reveals potentially suspect practices (i.e. excessive homogeny) the Commission has the power to investigate on its own.

EEOC attorneys advocated throughout the meeting for increased EEO 1 Survey reporting requirements for staffing companies and increased record retention requirements for all employers. They argued that such information on screening and placement would assist investigators in temporary staffing agency investigations because investigators could better observe the company’s placement demographics. Commissioner Victoria Lipnic then turned this question back to others on the panel for their feedback on the pros and cons of expanded EEO 1 reporting.

Built in Discrimination

The recent United States Supreme Court decision in Wal-Mart v. Dukes generated some tangential, but telling, discussion during the meeting. Commissioner Ishimaru made clear in his opening remarks that the EEOC is not beholden to Rule 23 and would continue to prosecute perceived systemic discrimination wherever it is found.

The discussion further segued into how companies should handle discrimination at a lower level. In this scenario, the company leaders and human resources professionals do not endorse discrimination, the correct policies and training are in place, but supervisors and lower level managers with hiring authority allegedly discriminate anyway. The panelists suggested various remedies: (1) additional training; (2) company leader participation in training; and (3) evaluating supervisors and lower level managers on how well they accomplish diversity.

However, Commissioner (and former Georgetown law professor) Chai Feldblum’s hypothetical suggestion that lower level managers and supervisors face personal liability for discrimination claims sparked the attendees’ attention. She later qualified her statement, but her point on accountability and the vital role of all persons involved in the hiring process resonated. It is clear that the Commission is actively looking for new ways to discourage individual discrimination at all corporate levels.

Conclusion

In the Commission’s effort to further combat disparate treatment in hiring, employers can expect to see more expanded investigations, increased charges brought by the Commission and possibly expanded EEO 1 Survey reporting requirements, especially for staffing and employment agencies. Certainly, the Commission underscored its previously expressed commitment to investigating and litigating cases alleging disparate impact in hiring (e.g. through the use of certain background checks). It emphasized perhaps an expanded role in bringing pattern and practice claims unconstrained by the stricter requirements for private class actions. Yet, General Counsel Lopez also stressed the “small” single-claimant cases as an effective vehicle for establishing important legal principles.

To protect themselves, employers should review all hiring policies, practices and training to make sure it is in line with Title VII. Panelists stressed re-familiarization with the Commission’s longstanding guidance on non-discriminatory hiring. Further, while a low level manager is not likely ever to have personal liability for discriminatory hiring practices, the employer does. Designing a way to hold employees with hiring authority responsible for suspect hiring decisions protects the employer.

Littler attorneys are well versed in all areas of Title VII compliance and can assist employers with policy drafting and implementation as well as creative solutions to foster a non-discriminatory corporate culture.

Links to the meeting transcript, video of the proceedings, and copies of the panelists’ written testimony can be found here.

Photo credit:  PressFoto