Recruiting on the Right Side of the Law

Workforce Management
Recruiting on the Right Side of the Law

“Creative” recruiting and hiring candidates with the “best fit” open the door to discrimination charges. By Fay Hansen

Abercrombie & Fitch engaged in "creative" recruiting to fill sales jobs with candidates who matched the company’s carefully constructed marketing image. The high-profile clothing retailer staffed its stores with handsome young white men and touched off a lawsuit that ultimately cost the company $50 million and a barrage of bad publicity. More than 10,000 applicants and employees received their checks for damages in December 2005 after Abercrombie settled the suit.
Although companies generally operate in a heightened state of awareness about the potential for discrimination charges during terminations, the possibility of lawsuits arising from the recruiting process draws less attention. But faulty recruiting and hiring procedures can generate claims from unsuccessful applicants. In addition, employees who initiate lawsuits often reach all the way back to the hiring process to show systemic practices.
Objective sourcing and selection standards are the key to staying on the right side of the law, but many recruiters are still working with subjective criteria. "Creative" evaluation techniques and the ever-popular "best fit" explanation for selecting candidates can invite discrimination charges.
Abercrombie recruited for a certain "look." Some recruiters go on a "gut feeling" about candidates or search for a match with the corporate "culture." It’s a subtle landscape, but red flags pop up along the way.
The Equal Employment Opportunity Commission filed the lawsuit against Abercrombie for using image-driven recruiting and hiring practices that led to the exclusion of minorities and women and limited their employment. As part of the settlement, Abercrombie agreed to hire 25 diversity recruiters, set benchmarks for hiring women and minorities, overhaul its recruiting procedures and end recruiting at fraternities, sororities and certain colleges. A court-ordered monitor will evaluate the company’s recruiting practices for at least five years.
Damage to the company’s reputation exceeded the direct dollar costs of the settlement.
"When a discrimination charge is filed, applicants are making one of the most serious charges anyone can make short of a criminal accusation," notes Eric Dreiband, who was general counsel for the EEOC when the agency moved against Abercrombie. "They are charging that their civil rights have been violated. People fight over money all the time, but a discrimination charge goes to the integrity and reputation of the employer."
Companies with large, sophisticated staffing functions are more vulnerable than they may think. On March 29, the EEOC filed a lawsuit against UPS on behalf of a Rastafarian who was told he would have to shave his beard to be hired as a driver helper. Two days later, it filed a national class-action sex discrimination lawsuit against Lawry’s Restaurants Inc. on behalf of male applicants who allege they were systematically rejected for jobs as food servers.
Applicants and employees file more than 75,000 charges with the EEOC each year and the agency pursues more than 400 full-fledged lawsuits annually. [To read the entire story, go to: http://www.workforce.com/archive/feature/24/38/12/index.php ]