In 1970, Willie Griggs and twelve other African-American employees filed a lawsuit against Duke Power Co. for discriminatory employment practices. On March 8, 1971, the US Supreme Court ruled in favor of Willie and the other black employees.
The rest, as they say, is history.
Griggs vs. Duke Power Co. established the legal precedent for disparate impact lawsuits, as well as the clear necessity for companies to ensure their recruitment criteria have no adverse impact on members of a protected class.
But this story is far from over. In 2020 alone, the US Equal Employment Opportunity Commission (EEOC) collected $439.2 million in monetary benefits for victims of employment discrimination. EEmployers still have a lot to learn when it comes to implementing unbiased recruitment practices.
In this article, we’ll walk through a step-by-step process for assessing your recruitment compliance fitness to help ensure you’re complying with the relevant federal, state, and local laws, and also with the best practices that will help keep your candidates safe, protected, and excited to work for your company.
NOTE: While we always aim to provide you with the most valuable and reliable information on all things HR, we are not legal professionals. Nothing you read here should be considered legal advice. Always seek professional legal advice to keep your company compliant.
A 5-step process to assess your recruitment compliance
Step 1: Stay up-to-date on recruitment laws
From how you hire employees to how you terminate them, there is a rule or regulation for nearly every employment-related activity. These laws are not limited to employees alone; many of them also apply to how you treat your job applicants.
Here a few of the most important recruitment laws every business owner should know:
- Title VII of the Civil Rights Act of 1964: Title VII prohibits discrimination against employees and candidates on the basis of color, race, religion, sex, or national origin. The law applies to employers, employment agencies, training programs and labor organizations. Businesses with 15 or more employees are required to comply with Title VII unless vetoed by another law.
- Americans with Disabilities Act (ADA): The ADA is a civil rights law that was enacted to provide equal opportunities and civil rights protection to individuals with disabilities. Under Title I of the ADA, employers are required to provide reasonable accommodations that enable job applicants and employees with disabilities to participate in the application process and perform essential work functions.
- Equal Pay Act (EPA): The EPA requires that men and women in the same workplace are compensated equally for equal work. The job functions, and not job titles, determine the equality of the work. This law covers all forms of compensation including salary, profit sharing and bonus plans, life insurance, stock options, etc.
- Pregnancy Discrimination Act (PDA): The PDA ensures that employees and job applicants are not discriminated against on the basis of pregnancy in any aspect of employment. Under this law, an employer must treat a woman unable to carry out her duties due to a medical condition caused by pregnancy or childbirth the same way a temporarily disabled employee would be treated.
- Age Discrimination in Employment Act (ADEA): The ADEA protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in all recruitment related activities such as hiring, discharge, and privileges of employment.
- Salary History Bans: Under these protections, employers are prohibited from asking candidates about their previous salaries. The aim is to reduce historical discrimination and in some cases, the ban may also prevent employers from setting compensation based on an applicant’s pay history if discovered or volunteered.
Currently, there are salary history bans in the following states and jurisdictions:
- Alabama
- California
- Colorado
- Connecticut
- Delaware
- District of Columbia
- Georgia (local to Atlanta only)
- Hawaii
- Illinois
- Kentucky (local to Louisville only)
- Louisiana (local to New Orleans only)
- Maine
- Maryland
- Massachusetts
- Mississippi (local to Jackson only)
- Missouri (local to Kansas City and St. Louis only)
- Nevada
- New Jersey
- New York
- North Carolina
- Ohio (local to Cincinnati and Toledo only)
- Oregon
- Pennsylvania
- Puerto Rico
- Rhode Island
- South Carolina (local to Columbia and Richland County only)
- Utah (local to Salt Lake City only)
- Vermont
- Virginia
- Washington
The above laws are enforced by either local and state government authorities and/or the EEOC, and employers who break them are liable. Always consult your local labor department for details on specific state and local laws that may apply to your business.
Step 2: Review your job ads and interview process
Job ads and interviews are areas where many employers may falter, despite an awareness of recruitment laws. For example, consider a job ad that says it’s looking for ‘an Account Manager who is a native Italian speaker’. This alone can qualify as discriminatory against people of certain ethnicities and national origin. A better way to phrase it would be to say you’re looking for an ‘Italian-speaking Account Manager’. That way, anyone with the other requirements who can also speak Italian is able to apply and be considered for the job.
Asking questions about an interviewee’s religious background, when these beliefs are irrelevant to the job role, is also off limits.
To help you avoid mistakes like these, here are some tips to keep in mind when writing your next job ad or conducting an interview:
- Always avoid gendered, sexist, racist, and age discriminatory language in your job description. For example, saying “he is a lover of all things Python” or “applicants must be below 30 years of age” are not inclusive or compliant.
- Use a standard interview questionnaire to screen applicants. This way, you can be sure every member of your hiring team is on the same page during the interview process. Also, consider checking out this list of 35 interview questions you should never ask.
- During your interviews, stick to questions about the candidate’s skills, experience, and credentials that are relevant to the role they applied for.
- Whether a candidate qualifies or not, treat them in a respectful manner throughout the hiring process.
When you step back and look at the big picture, the same tactics that will keep you compliant are also great ways to ensure a safe and respectful experience for your candidates.
Whether you take an entirely hands-on approach to recruiting compliance, or using an applicant tracking system to do some of the heavy lifting for you, by simply doing what’s right for your candidates, you’ll help protect your company as a natural byproduct.
Step 3: Protect candidate data
Although US federal laws allow employers to run background checks, some states have stricter laws that guide how information obtained through these checks can be used.
Some states also enforce ban-the-box laws that prevent employers from asking about a candidate’s criminal history in a job application. In certain states, you can only find out about possible criminal convictions after an interview or conditional job offer.
Credit history backround checks are also considered discriminatory in some states and can be grouped under disparate impact. Because members of minority groups are more likely to have poor credit reports, making employment decisions based on credit history can have an adverse impact.
Step 4: Audit for compliance in the hiring and onboarding process
Compliance doesn’t stop once an applicant becomes a new hire. In fact, it extends to your job offer and employee onboarding process.
To start, all US employers must fill the Form I-9 which verifies the identity and employability of all their hires, both residents and non-residents. Certain categories of employees are also expected to submit documentation that verifies their eligibility for work.
When drafting your offer, you’ll want to clearly state the type of contract, conditions of the contract, and the compensation the employee would receive. Laws like the Fair Labor Standards Act that ensure employees are compensated for the number of hours they put in, as well as federal and state minimum wage requirements may apply here.
If one of the benefits that comes with your offer is health coverage, you may want to look into relevant healthcare laws like the Affordable Care Act (ACA), the Consolidated Omnibus Budget Reconciliation Act (COBRA) which extends healthcare coverage to terminated employees, and the Health Insurance Portability and Accountability Act (HIPAA) which protects employees’ medical information.
Some businesses must also follow specific safety guidelines covered by the Occupational Safety and Health Administration agency (OSHA). As part of your hiring process, be sure to inform candidates of any OSHA-specific requirements they may need in order to qualify for the role.
Remember, the conditions and guidelines surrounding many of these laws are vast and complex. Always consult a qualified legal professional when making these decisions.
Step 5: Beware of adverse action and adverse impact
By the time you reach this step, you’ll have come a long way in ensuring your recruitment process is not only compliant from a legal point of view, but also from a ‘what’s right for the candidate’ point of view. Well done!
But before you get going with your newly reviewed recruitment process, you’ll want to take one more pause. Because even when you’re ticking all the right recruitment compliance boxes, there are still ways you could be unintentionally biased towards minority and protected groups.
Let’s talk about adverse action and adverse impact.
The EEOC defines adverse impact as a “substantially different rate of selection in hiring, promotion, or other employment decision which works to the disadvantage of members of a race, sex, or ethnic group”.
Adverse actions can take two forms. The first is general. For example, if during an interview, a job applicant mentions her plans to get pregnant in the future and an employer refuses to offer her the position on the basis that they want an employee who will always be available, this may qualify as an adverse action.
The most common measure of adverse impact is the 80% rule. This rule states that if the selection rate for a certain group is less than 80% of that of the group with the highest selection rate, there is likely an adverse impact on that group.
However, US courts have questioned the arbitrary nature of this rule and statistical testing methods like the Z-test and Fisher’s exact test are now also used to measure adverse impact.
The second form of adverse action relates to background checks. If you discover information that prevents you from moving forward with your job offer, you are required to send the applicant an adverse action notice before withdrawing your offer.
This gives the applicant time to counter your claims and provide contrary evidence. If, after waiting five days, the candidate is unable to clear their name and you decide to withdraw your offer, you are then required to send a final notice of your decision to the candidate.
Recruitment compliance can be a mutual win
No matter how large or small your organization, you can’t afford to incur fines due to illegal recruitment practices. And it’s not just money that’s at stake. Your reputation as a great place to work matters more than ever in today’s talent market.
So while assessing your recruitment compliance process might not be priority #1 on your to-do list, taking the time to figure it out can elevate your entire recruitment strategy and fill your pipeline with qualified candidates.
With the help of your hiring team members, a great recruitment platform, and the right information and resources, you can be sure that the time you put into building a compliant recruitment process will pay off for years to come.
