Written Testimony of Rae T. Vann General Counsel Equal Employment Advisory Council

Meeting of June 22, 2011 - Disparate Treatment in Hiring

Chair Berrien, Commissioners, General Counsel Lopez and colleagues: On behalf of the Equal Employment Advisory Council (EEAC), I appreciate the opportunity to appear before the Commission to discuss best practices for avoiding discriminatory recruitment and hiring practices through the development and implementation of effective corporate EEO training programs.

Introduction

The Equal Employment Advisory Council (EEAC) is a nonprofit association of major employers organized in 1976 to promote sound approaches to the elimination of employment discrimination. Its membership comprises a broad segment of the business community and includes roughly 300 of the nation's largest private sector corporations. EEAC's directors and officers include many of the industry's leading experts in the field of equal employment opportunity. EEAC's members are firmly committed to the principles of nondiscrimination and equal employment opportunity.

EEAC was established primarily with three aims in mind: (1) to file amicus curiae, or "friend-of-the-court," briefs in precedent-setting, federal employment-related litigation; (2) to provide technical Equal Employment Opportunity and Affirmative Action (EEO/AA) compliance assistance to member company practitioners; and (3) to serve as a clearinghouse for its membership on federal EEO/AA compliance, enforcement trends and best practices.

EEAC's founding aims and objectives naturally led to the development of a wider array of offerings for EEO/AA compliance practitioners. Among other things, EEAC has built an extensive curriculum of "live" and on-line training and educational seminars developed and presented by experienced EEAC trainers. Since 1977, when its first formal seminar on determining availability for Affirmative Action Plans (AAPs) was held, EEAC has trained thousands of corporate human resources and compliance personnel on how to prevent workplace discrimination and promote equal employment opportunity. In fact, some EEAC member companies make attendance at one or more of our training programs a requirement for those new to the EEO/AA compliance role.

EEAC's core training curriculum currently features five programs that are offered at various times each year to a national audience: Basic EEO & Affirmative Action Compliance; Developing & Defending Compliant Affirmative Action Programs; Responding to Charges of Employment Discrimination; Conducting a Compensation Analysis; and the EEO/AA Compliance Immersion Program. The three-day Basic overview course addresses the fundamentals of equal employment opportunity and affirmative action. The Developing, Responding, and Compensation programs are technical skills development courses focusing on the preparation of affirmative action plans and managing compliance evaluations conducted by the Labor Department's Office of Federal Contract Compliance Programs (OFCCP); employment discrimination charge processing; and conducting meaningful and effective compensation analyses. The Immersion program is a five-day, intensive class that combines all of the essentials of the Basic, Developing, and Responding courses into one.

About ten years ago, EEAC introduced its EEO Essentials for Recruiters program in an effort to ensure that corporate recruiters perform in a manner that is consistent with their company's EEO and affirmative action policies and complies with legal requirements at the earliest stage of the hiring process. The EEO Essentials program provides recruiters with an understanding of the critical information they need to function effectively in today's business and legal environment, emphasizing the importance of consistent, nondiscriminatory application of selection criteria and fair and equitable treatment of applicants for employment.

As a complement to its training curriculum, EEAC also offers a wide array of written publications and resources. Of particular relevance to this meeting is EEAC's Fair Employment Practices training package, which provides front-line supervisors with a basic understanding of the EEO considerations and legal responsibilities involved in their day-to-day decision-making, including (among other things) tips to ensuring EEO-compliant hiring practices. EEAC's Self-Audit Checklist is another useful tool that helps to promote proactive prevention of workplace discrimination. Organized into seven units, including one devoted to hiring and promotion practices, the Checklist is intended to be reviewed in conjunction with regular internal audits of corporate EEO/AA practices and policies.

I have been asked to address: (1) the "business case" for proactive prevention of hiring discrimination through comprehensive EEO training; (2) any hurdles that may impede those efforts; and (3) best practices for ensuring full and meaningful compliance. As is reflected above, EEAC has played and continues to play a significant role in providing in-depth technical training to leading HR practitioners from across the U.S. Because participation in our core training programs is not limited to large, EEAC member companies, we also have had the opportunity to train representatives of smaller organizations, providing EEAC with a more meaningful perspective regarding the needs of a broad range of employers, as well as the preventive efforts that have proven most successful in practice. It is that perspective on which my comments today are based.

The Importance of Proactive Prevention

As noted earlier, EEAC members are nationwide leaders in developing and implementing programs, practices and procedures designed to promote equal employment opportunity. These initiatives, some examples of which I will describe below, are undertaken not only to avoid unlawful discrimination, but also to attract and retain the best and brightest workers. Acknowledging and proactively addressing potential barriers to employment is essential to maintaining a talented and productive workforce.

Establishing strong EEO and nondiscrimination policies and effectively communicating compliance expectations through training and other professional development opportunities also minimize the risk of costly and time-consuming litigation, which can impact a company's reputation, worker productivity and morale.

Unfortunately, comprehensive, company-wide training and development also can be resource and cost intensive, which may limit the range of options available to some companies — particularly smaller ones. The availability of low-cost, quality EEO training packages may be very important to smaller employers that do not employ in-house professional development staff or cannot afford to send personnel to outside programs.

Best Practices for Maximizing Success of Corporate EEO Training Programs and Minimizing Discrimination in Hiring Decisions

Train Everyone (Recruiters, in Particular) on EEO Compliance, and Train Them Often

Ideally, all employers should have some form of mechanism, in addition to written policies contained in personnel manuals, for educating employees about their EEO and nondiscrimination compliance responsibilities. Whether and to what extent employees receive extensive classroom or web-based training may vary, depending upon their roles. Annual awareness training — which clearly describes the company's EEO and nondiscrimination (including retaliation and harassment zero tolerance) policies and expectations, its complaint filing and investigation procedures, provides examples of prohibited conduct, and outlines the consequences for violations — may be sufficient for some workers. For others, more substantive EEO training is required.

Recruiters and others on the "front-line," for instance, need to be especially proficient in EEO laws and principles in order to understand how hiring discrimination can occur and therefore should be provided with something more substantive than "awareness" training. Because avoiding recruiter missteps at the earliest stages of the hiring process can go far in preventing biased decision making, EEAC added a training program to its learning curriculum geared specifically towards EEO recruiters. As discussed earlier, our EEO Essentials for Recruiters course, in addition to providing an overview of the relevant EEO laws, focuses on the specific types of issues that can arise in the initial hiring process.

The EEAC Recruiters "essentials" include, for example, knowing (as a recruiter or hiring manager) when to call HR when an issue arises; the importance of applying selection procedures consistently and in a nondiscriminatory manner; and keeping all inquiries job-related, focusing on the requirements of the position and the applicant's qualifications. It also contains specific examples, such as the types of subjects to avoid during an interview (i.e., questions likely to elicit irrelevant information about personal characteristics, such as age or date of birth; religion or race; birthplace; marital status; number or ages of children; past injuries or illnesses, etc.).

In that same vein, a recent EEAC-sponsored web workshop specifically geared towards recruiting staff and hiring managers outlined the basic legal requirements of Title VII, then provided specific examples of real-world conduct that could lead to potential discrimination (and why), such as steering minority candidates to jobs in predominately minority communities, refusing to hire a qualified Asian applicant out of concern about culture "fit," or asking a woman during an interview about plans to have children, birth control, or child care arrangements.

Similar real-life examples were used to reinforce the requirements of the ADEA (using potentially stereotypical phrases or "buzz words," such as "fresh look," "energetic," "youthful," "grow with the company" in filling client requisition preferences for "ideal candidates," describing a candidate as "overqualified," or asking an applicant's age or year of graduation (from high school or college) during an interview), as well as the ADA (telling an applicant that a particular job does not offer "light duty" or cannot be accommodated, refusing to interview or hire an otherwise qualified applicant with a hearing impairment for a manufacturing job based on general, unspecified safety concerns, or failing to respond to an applicant's request for reasonable accommodation in the selection process).

Line supervisors and managers who may have authority to hire staff also need to understand what the law and company policy requires of them, and what types of actions can undermine EEO compliance efforts. In addition, however, they are responsible, as agents of the employer, for monitoring the workplace for and addressing workplace problems which, if left unresolved, could result in discriminatory employment practices. For that reason, the training offered to supervisors and managers must go beyond the subjects covered in a recruiters-oriented program.

HR professionals who are likely to receive and be expected to respond quickly to questions from the field must have a clear, substantive knowledge of all the laws, regulations and rules that apply so that they can advise staff appropriately and act in good faith compliance with the law. They are the target audience for in-depth training programs like EEAC's Basic, Responding and Immersion courses, where participants not only study the law, but also participate in group exercises designed to test their knowledge. Another beneficial aspect of EEAC training is that it enables HR professionals from different companies, industries, and geographic locations to benchmark with one another regarding practical solutions to common compliance issues, and to ask questions in a "safe" environment.

For companies that conduct EEO training in-house, it goes without saying that those responsible for facilitating in-house programs should have a deep knowledge and understanding of, and practical experience with, covered topics before being permitted to teach others. Handing professional development staff a policy manual or textbook and expecting them to be able to understand what it all means does not represent an employer best practice.

For companies that do not, or cannot, offer regular in-person or web-enabled learning opportunities, a number of other, cost-effective alternatives may be available. In addition to offering a wide range of training opportunities, for example, EEAC publishes detailed, weekly memoranda designed to keep member companies apprised of emerging EEO/AA compliance issues and/or significant statutory, regulatory and case law developments. These regular updates serve to reinforce the learning that takes place through structured training programs and help compliance staff to avoid violations.

Key Features of an Effective EEO Training Program

Good EEO training does not always have to occur in a classroom setting. However, and as noted above, the ability to ask questions and to benchmark with colleagues in a group setting is beneficial to all, particularly individuals new to compliance.

Training also should be offered regularly to ensure that employees are kept abreast of changes in the law and/or company policies and procedure. One of the goals of corporate EEO training should be to ensure that program participants, at the end of the program, are able to articulate not only the company's EEO and nondiscrimination policies but also how those policies, if properly applied, will help to prevent hiring and other forms of discrimination.

To that end, employers are wise to ensure that their training materials are accurate, timely and practical, and delivered in an engaging manner by trainers who not only are substantive experts, but also are able to communicate effectively with their audiences.

At a minimum, every basic EEO corporate training program should:

• Cover the EEO fundamentals, including the sources of rules governing workplace conduct (statutory, regulatory, company policy), how the rules are enforced (charges, lawsuits, self-audits, compliance evaluation) and under what theories (disparate treatment vs. disparate impact discrimination), and the consequences of noncompliance ("school of hard knocks" examples);
• Reinforce legal principles with practical, real-world examples;
• Incorporate group exercises to reinforce learning;
• Explain complaint filing and investigation procedures;
• Discuss zero-tolerance retaliation principles; and
• Allow sufficient time for Q and A and benchmarking.

Monitor the Workplace, on an Ongoing Basis, for Potential Issues

As already discussed, an important means of preventing various forms of workplace discrimination is for supervisors and managers to actively monitor the workplace for potential issues and take proactive measures to reinforce company EEO and nondiscrimination policy.

Example: Manager John overheard someone who participated in a group interview describe how one of the interviewers gave a male applicant a particularly hard time for having expressed a desire, due to family needs, for greater work-life balance. Despite the fact that the applicant ultimately was selected and hired for the job, Manager John takes what he has heard as an opportunity to (among other things) propose incorporating a discussion about gender stereotyping and/or caregiver issues into the company's EEO training.

Recommendations and Conclusion

Because of the importance of EEO training to minimizing the risk of intentional discrimination in hiring decisions, it would be beneficial especially to small and mid-size employers for the Commission to update its 1998 Best Practices of Private Sector Employers Report to focus specifically on best practices for delivering effective EEO training and professional development. Providing a range of "best in class" examples from the private sector will enable many more organizations to adopt effective EEO training programs that clearly convey the law and company policy and expectations, while providing practical guidance for addressing real-world issues.

At the same time, however, the Commission should be mindful of the fact that not all companies are in a position to be able to provide identical training opportunities. Indeed, companies should be discouraged from taking a one-size-fits-all approach in implementing EEO training. Therefore, the Commission should avoid dictating to employers what specific type of program or training curriculum will be required, as learning needs, resources, and circumstances will vary from company to company.

EEAC commends the Commission on its efforts to address and overcome unlawful hiring discrimination, and we appreciate the opportunity to provide the agency with our thoughts on employer best practices. Thank you.