Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Employers in today’s tight job market are constantly looking for ways to recruit and maintain top talent from a diverse slate of candidates. Doing so can be tricky, however, as there are limits to which employers, recruiters, and staffing agencies can go in building such a slate. This Littler Lightbulb shines a spotlight on some ways to help attract a diverse candidate pool without running afoul of anti-discrimination laws.
Employers might wish to consider whether the following steps may be helpful and suitable for their organization:
- Review and revise job postings to ensure they are gender neutral and do not otherwise use coded language. Consider using a reputable and evidence-backed gender decoding tool for the purpose.
- Review the job description before recruitment to ensure that it reflects the needs of the job. For example, can someone with experience in the field or non-college qualifications perform the job just as well as someone with a college degree? If so, consider updating the prerequisite qualifications in the job description to reflect as much.
- Review job postings to add robust EEO language inviting all to apply but especially encouraging individuals from historically marginalized communities to apply.
- Ensure that the diverse slate policy or any other diversity, equity, and inclusion recruitment initiative is accompanied by training for talent acquisition teams and hiring managers to avoid improper implementation.
- Effective diverse slate policies ought to use reasonable percentages/numbers of candidates from historically marginalized communities. Employers may conduct due diligence in identifying these reasonable aspirational percentages/numbers of candidates for diverse slate policies by way of an availability analysis for the relevant job code in the relevant region.
- Ensure that a diverse slate policy is well written and includes sufficient avenues for talent acquisition to proceed with the hiring process when the desired percentage/number of diverse candidates cannot be sourced.
- Audit diversity initiatives regularly—and preferably under privilege—to determine whether they are effective and to confirm they remain legally compliant in practice.
- Develop uniform interview questions and candidate assessments to aide interviewers through the interview process.
- Develop diverse interview panel policies and processes to ensure diversity amongst interviewers.
- Conduct regular interview training for interviewers.
- Make no employment decision based on protected characteristics.
- Avoid quotas/goals/targets for hiring based on protected characteristics in the United States.
- Avoid asking applicants to self-identify protected characteristics—outside EEO-1 or OFCCP obligations—without very careful consideration of the risks posed by the same.
- If adopting artificial intelligence (AI) in recruitment processes, carefully considering how it may affect individuals with disabilities as well as those in other protected categories. Remember to consider the unique laws controlling AI in employment decisions, which vary among jurisdictions.
- Expand but do not contract recruitment efforts. For example, do not recruit from historically marginalized communities in lieu of historically majority communities.
- Avoid allowing hiring managers to be involved in populating the diverse slate and therefore being privy to information regarding the protected characteristics of applicants.
- Do not interview individuals from historically marginalized communities simply to adhere to the terms of a diverse slate policy after already having decided which candidate will ultimately be hired for the position.
- Do not interview individuals from historically marginalized communities simply to meet a goal in a diverse slate policy where individuals are otherwise unqualified for the position.
- Maintain the qualifications for a position in a job description through the recruitment process. Do not change them mid-way through the process simply to foster greater diversity representation among the slate of candidates.
- Do not replace a qualified candidate from a historically majority community with a qualified candidate from a historically marginalized community simply to meet the diverse percentage requirement of a diverse slate policy.
- Avoid linking quantitative diversity hiring statistics to manager accountability, or incentives.
- Avoid showing managers demographic reports for fear of subconsciously influencing them to engage in reverse discrimination.
- Avoid providing demographic-based referral bonuses.
- If the company has a homogenous population, do not rely solely on referral hiring.
- Do not instruct third-party recruiters to propose only candidates of any ilk. Doing so could impose joint liability for the third-party recruiter and the employer making such a request.
Hiring can be a complicated endeavor, so employers are encouraged to consult employment counsel if they are unsure about their processes and procedures.