From time to time I’ve touched on the legal implications of certain hiring practice. In that vein, I’ve often mentioned federal statutes HR people need to be aware of. This time around, we’ll talk about one of the federal agencies that enforce these laws: the Equal Employment Opportunity Commission (EEOC).
Better yet, we’ll look at how it enforces the law. That’s because no agency is worthwhile without a strong program backing its policy – and the EEOC is among the best.
Which is why companies need to be careful when hiring. And why they need to start by choosing a background investigation firm wisely, one with sound knowledge of federal laws and how to avoid trouble with them. A company like The Hire Authority (508-230-5901; www.hireauth.com.
Created in the wake of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission was established to protect workers from discrimination. At the time, “discrimination” covered race, color, national origin, sex, and religion, but was later expanded to include disability, genetic information, and age.
As its name suggests, the EEOC is headed by a commissioner charged with one overriding responsibility: the prevention and discouragement of discriminatory practices in the workplace. These practices may take many forms after a candidate becomes employed, but for our purposes we will concentrate on the hiring process, with an emphasis on background investigations.
Every day the EEOC receives thousands of complaints at its various offices across the country. Many of these complaints come about because of perceived discrimination in hiring. I use the word “perceived” not to suggest that all complaints are imagined – many are quite deserved, some disturbingly so! – but to make clear that all it takes is a perception of discrimination for a complaint to be filed. Thus it’s important not to give even the impression that a candidate was singled out due to any of the criteria covered in the Civil Rights Act. (Note that state laws may cover additional criteria such as sexual orientation and military status, and these should be taken into consideration as well.)
This isn’t always easy. Sometimes discrimination may be implied indirectly. It shows up in not only what is asked, but how it is asked. It shows up in documents like references, and it shows up in basing decisions on criteria that are indirectly discriminatory. It’s actually not that hard to appear discriminatory, whether it was intended or not, if you’re not careful.
Once a complaint is received by the EEOC, if it appears to have any merit at all the EEOC will appoint an investigator. A hearing process will also begin. The defending company is afforded an opportunity to reply to the complaint, of course, and down the road there may be mediation, a full hearing, even appeals. Yes, that’s right: that whoosh! you hear in the back of your head right now is the sound of thousands of dollars and productive time going down the drain – even if you win!
What’s more, the EEOC has the power to investigate ongoing and widespread discrimination within the company itself. Yes, they can pore through your files and meeting minutes and interview anyone they wish. It doesn’t happen often, relatively speaking, but it does happen and it’s a nightmare. And it can start with just a complaint or two.
One more thing to worry about: if the EEOC finds intentional discrimination it can award punitive damages, which can be astronomical!
Now, I’m not trying to turn your hair gray. I’m only making a point: being cognizant of not only the word of the law, but how to avoid running afoul of those words is important. That’s where perception comes in.
In every hiring program, it’s important to be very careful how background information is gathered, documented, disseminated, and evaluated. Background investigations should be designed so they’re nondiscriminatory not only in practice but on their face. Job applications should not contain questions that can be interpreted as favoring any race, color, national origin, sex, religion, disability status, genetic background or age. Obviously, interviewers should be careful of asking questions that can be interpreted this way.
Which is not to say you can’t hire based on facially discriminatory criteria where that discriminatory criteria is legitimately required. It’s called a Bona Fide Occupational Qualification (BFOQ), and though rare, they do exist. (Example: a female clothing designer can legitimately advertise for female models only.) Remember: the definition of discrimination does not include bad intent. It’s when discrimination is used to exclude certain classes of people for illegitimate reasons that it runs afoul of the law.
In most instances discriminatory criteria based on a BFOQ will not figure into the job description, so it’s up to your hiring team to be aware of just what information about a candidate should figure into the hiring decision. And it all starts with a sound background check conducted by a company that knows what it’s doing. A reputable firm with long experience, like The Hire Authority (508-230-5901; www.hireauth.com).
So start your company on the right foot by hiring the right background firm. Call The Hire Authority at (508) 230-5901, or visit their website at www.hireauth.com for a no-obligation free consultation. You’ll be glad you did.
The foregoing should not be construed as legal advice. Employers should always consult their own legal counsel for advice on labor and employment matters.
Author: Michael Cormier