Key Takeaways
- Recruiters receive requests for diverse candidates, but hiring based on identity is illegal.
- EEO guidance prohibits discriminatory hiring practices based on stereotypes and assumptions.
- Employment agencies cannot discriminate or make referrals based on discriminatory categorizations.
- Well-represented candidate pools are acceptable, without specifying individual characteristics.
- The Rooney Rule and the “two-in-the-pool effect” are ways to increase diversity without discrimination.
This article from Jenn Tardy is about managing the legal requirements of diversity. To learn more about how to improve your organization's diversity, equity, and inclusion, check out these new guides: Helpful Diversity Recruiting Strategies You Need To Know and Diversity Recruiting Tools to Match Your Organization.
Go find me a diverse candidate.
Corporate and agency recruiters hear this statement often with good intentions from their clients—who are hiring managers—especially in the wake of the many public commitments that CEOs have made to increase diversity.
To many of our clients we have partnered with, not only is this an ineffective use of the word diverse, but recruiting teams have described this request as feeling icky, unethical, and some have even come to our team to determine whether it is even legal to intentionally seek out candidates based on how they identify, especially if it is for the sake of increasing diversity in the workplace statistics.
Here is the short version of the answer
Hiring an individual because of how they identify is just as illegal as not hiring an individual because of how they identify. As a matter of fact, this is language that you can use as you are communicating internally with your team.
Hiring an individual because of how they identify is just as illegal as not hiring an individual because of how they identify.
Here is the longer version of the answer
I want to first encourage you to think about this from an ethical standpoint. In this example, replace the words “Black woman” with “White man.” Would you move forward with a hiring process where your hiring manager asks you to “go find them a White man” to fill the open opportunity? Probably not.
There’s EEO guidance with language that says this: “An employer may not base hiring decisions on stereotypes and assumptions about a person's race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.”
So, when your hiring manager comes to you and says (from the earlier example), “Go find me a Black woman to fill this position,” it positions you, as the recruiter, to make assumptions about a person’s race along with a hiring decision connected to the same logic. In fact, you may even build a pipeline to fulfill that mission. This framework creates liability (i.e., risk) for your hiring manager and your workplace.
As a matter of fact, here is additional important EEOC guidance regarding employment agencies and unlawful referral practices.
“An employment agency is prohibited from discriminating against its own employees, as well as in its referral practices. An employment agency may not honor discriminatory employer preferences. For example, it is unlawful to accept a job order specifying the race, color, religion, sex, national origin, age (over 40) or disability status of the candidate. An employment agency may not categorize, group or classify job applicants, jobs, or employers based on race, color, religion, sex, national origin, age (over 40) or disability status and make referrals based on the categorizations. For example, it is unlawful to classify and refer only males to “light industry” positions or only females to “clerical” positions. In addition, an employment agency may not maintain a discriminatory environment, or discriminate against its own employees with respect to wages, promotions, etc.”
An employment agency may not honor discriminatory employer preferences. U.S. Equal Employment Opportunity Commission
Here’s something else that you should know. Title VII of the Civil Rights Act of 1964 prohibits discrimination not only by employers, but by employment agencies as well. Section 703(b) of the Act, 42 U.S.C. § 2000e-2(b), reads:
“…[i]t shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.”
Section 701(c) of the Act, 42 U.S.C. § 2000e(c), defines the term “employment agency” as: “any person regularly undertaking with or without compensation, to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.”
Now, let's talk about what IS okay
It is okay for your client, or hiring manager, to have a requirement that the candidate pool submitted to them is well represented and to state what representation looks like. Think The Rooney Rule, which is a National Football League policy that requires league teams to interview ethnic-minority candidates for head coaching and senior football operation jobs. Or, think of the “two-in-the-pool effect” as described by HBR, which goes further to explain that “when there was only one woman or minority candidate in a pool of four finalists, their odds of being hired were statistically zero. But when we created a new status quo among the finalist candidates by adding just one more woman or minority candidate, the decision makers actually considered hiring a woman or minority candidate.”
If you are truly working to increase diversity in your workplace and undo a homogenous workforce, consider the ONE formula that you will need in order for it to be successful. If you want to learn more about legal and ethical considerations while working toward increasing diversity, and need more examples of workforce diversity, we recommend checking out two of our most popular guides: The Search Agency's Diversity Recruiting Playbook and Legal Considerations in the Hiring Process (Checklist).
