Tag Archives: discrimination
Do You See Color? Or Age, Gender, Introverts, Former Sorority Sisters or Any Other Distinguishing Characteristic?
Of course you do. We all do. And that’s the problem.
Unconscious bias – an implicit preference for certain groups – is pervasive in life, and by extension, the workplace. It can influence workplace decisions, without anyone realizing it. (Duh, that’s why it’s called unconscious…)
But these decisions may harm the workplace. So this bias needs to be brought into the conscious and addressed.
Everyone unwittingly favors certain types of people based on their upbringing, experience and values because human beings need bias to survive, diversity experts say.
Diversity trainers liken this bias to a “blind spot”, and say it’s not something to be ashamed of. Instead, workers shoudl take a moment to stop and think about decisions they’re making before they complete them, to see if they’re influenced by the unconscious bias.
But a training session on it’s own isn’t enough to make much of a difference in a workplace. It needs to be coupled with tactics as joint interviews of applicants and requirements that candidate slates include diverse prospects tend to see faster improvement.
There are certain questions that most HR professionals try to shy away from, in some cases because of a belief that those questions are “illegal.” Some common examples of questions that are considered to be “illegal” include questions about a person’s age, marital status, or citizenship. Asking whether someone has kids is also generally considered to be “illegal” as well.
Are These Interview Questions Really “Illegal”?
The reality, however, is that while asking these questions could potentially start trouble, simply asking about someone’s kids or spouse is not illegal per se. As a recent CBS News article points out, the problem with these questions exists because they could potentially provide an employer with information that is used to discriminate against someone.
Discrimination is illegal based on a person’s race, religion, national origin, gender or age. In addition, discriminating against someone because he or she has kids is often considered to be a form of gender discrimination if the manager or employer acts upon stereotypes indicating that women spend more time taking are of the kids or otherwise have their careers impacted as a result of having children.
When an employer or manager who is hiring asks these questions, therefore, this could be an indication to potential employees that the employer is going to discriminate based on some prohibited reason or based on their protected class.
The CBS News article tackling the issue of illegal interview questions indicated that there is not a significant risk in asking questions that might in some way reveal information about a person’s protected status. As the article points out, much of this information is available to employers anyway by virtue of looking at a person or seeing a wedding ring.
While the article recommends keeping the questions job focused, it therefore also suggests that there’s no reason to be paranoid about making conversation about someone’s kids.
Facial recognition technology has become more widely available and more useful than ever before. Facial recognition technology involves automatically identifying a person from a video or picture source. The technology allows you to learn a great deal of information from a face, including a person’s home address, social security number, social clubbing behaviors and criminal background. It is also available to anyone.
Facial Recognition Technology and Employment Implications
The implications of face recognition technology could potentially be huge to employers, if they choose to use them. Face recognition technology could help in the hiring process by allowing employers to find out all of the information they could want or need about potential candidates. It could also make background checks and security clearances much more streamlined and simple.
However, most employment law experts warn against the use of this technology by HR professionals. This warning comes not just because there are no clear rules about the use of the technology or about how it impacts privacy, but also because it is possible that employers could find themselves facing problems with allegations of discrimination as a result of using face recognition technology.
Anti-discrimination laws forbid employers from taking any employment action on the basis of someone’s age, race, gender, religion or national origin. When employers begin to keep information – pictures- that show a person’s race, and when they use those pictures to find out other things- like their employee’s religious affiliations- this can make the employer susceptible to a case under Title VII or other civil rights laws.
Essentially, this means that unless you are in an industry where security is vital, or unless facial recognition becomes the standard and clear rules and guidelines develop, it is best to steer clear.
The EEOC, or Equal Opportunity Employment Commission, is the government agency vested with the authority to enforce anti-discrimination legislation such as Title VII of the Civil Rights Act of 1964 and The Age Discrimination in Employment Act. The EEOC currently maintains an advisory and investigatory role, issuing guidance to employers on the meaning of anti-discrimination legislation and investigating allegations of discriminatory behavior to identify and take action against employers who violate the law. Like all administrative agencies, the EEOC must develop and post a strategic plan every four fiscal years. This means that the EEOC is now working on a draft of its 2012-2016 plan.
The EEOC Revised Plan
Based on the current proposed EEOC draft, it is clear that the agency intends to take a more proactive role in curbing discriminatory behavior. The EEOC has long taken a relatively passive stance, although there have been indications that is changing for a while. The statisics for 2011, in fact, show that the year was a record one for both the number of discrimination charges filed and the amount of damages recovered from employers. The new plan puts into writing the EEOC’s new and more aggressive stance, instituting changes such as:
- Policies for fighting discrimination through law enforcement
- A plan for increased anti-discrimination education and for more outreach programs
- A plan to make it easier for the public to obtain EEOC services.
Employers need to be aware that the EEOC is increasing enforcement tactics and efforts and should take a moment to read the new plan in full to understand what types of changes are expected.
The important thing to remember is that it is your obligation to avoid not only overt discrimination, but also practices that can be viewed as discriminatory. To avoid potential allegations of discrimination by the EEOC:
- Maintain a clear anti-discrimination policy and hiring policy that promotes equal opportunity employment
- Provide anti-discrimination training at all levels and be sure managers and employees understand the legal implications of discriminatory behavior
- Review screening practices and pre-hiring qualifications to ensure that none are having a discriminatory effect
- Take great care in performance reviews and put everything in writing in case you need documentation to prove why employment decisions were made.
By being proactive yourself to avoid discrimination, you can avoid any potential problems with the new and more proactive EEOC plan.
From the New York Times: Legal experts say that the practice probably does not violate discrimination laws because unemployment is not a protected status, like age or race.
The Equal Employment Opportunity Commission recently held a hearing, though, on whether discriminating against the jobless might be illegal because it disproportionately hurts older people and blacks.
Some states, such as New Jersey, are already passing laws to prevent employers from posting job ads that bar unemployed candidates from even applying.
However, even in job candidates aren’t being initially disqualified because of their unemployment status, they are being disqualified due to credit or other background checks required by the company.
“I worry that unemployment may eventually come down, not because older workers who have been unemployed for a year or two find jobs,” Professor Shimer, a labor economist at the University of Chicago, said, “but because older workers finally give up and drop out of the labor force.”
And knowing how these cases are viewed by a court of law is important to protect yourself and your organization down the line.
In an interesting post on The HR Café blog this week, here’s a situation that many managers could easily find themselves facing:
You’ve got an older employee named Joe on your team. It’s your job to maximize productivity, and his performance has fallen. It seems clear to you that Joe’s age is preventing him from meeting the demands of his job.
Can you transfer him to a lower-paying job he can handle?