Internet job boards, search engines, and social media sites continue to shape the ways in which companies locate, recruit and hire candidates for open positions.
While federal employment nondiscrimination laws do not prohibit particular hiring practices, it is crucial to remember that they do require that employer hiring still be done in a manner that is nondiscriminatory with respect to race, national origin, gender, age, disability and other protected categories. It is also important to recognize that prohibited forms of discrimination can be both intentional and even unintentional.
In other words, hiring practices that are carried out online and might appear to be neutral at first glance could have the unintended effect of disproportionately excluding people based on their membership in protected categories. An upgrade in technological tools certainly does not alter these basic requirements. With these guiding principles in mind, here are some things to be careful of during the e-recruiting process:
· Access for the visually impaired:Under the Americans with Disabilities Act,employers may have an obligation to ensure that their technology is accessible to people who are blind or visually impaired.
· Intentional screening of protected groups:Screening software is available that can limit candidates to particular geographic areas, but this can create some possible complications. For example, the initial screening could exclude people with addresses in certain ZIP codes known to be ethnic, racial or religious enclaves that would raise concerns of discrimination.
· Consider low-tech alternatives: At least for certain kinds of jobs, an argument can be made that hiring practices requiring computer skills or access to the Internet unfairly affects certain groups of people, such as seniors or the economically disadvantaged. If the job being listed doesn’t require computer skills, you could be accused of discriminating by only going for a crowd that is computer literate.
· Internet Applicant Rule: The Internet Applicant Rule applies to federal contractors and subcontractors and imposes specific recruiting, recordkeeping and other obligations. Technology does not allow for any shortcuts with these requirements; indeed, the applicant rule is specifically directed at the use of the Internet and other electronic recruiting tools.
Exciting recruiting possibilities offered by new technologies do not remove or even lessen the pre-existing responsibilities a company may have to ensure that its hiring practices are nondiscriminatory. As employers move ahead with exploring the latest innovations to fill open positions, they should always be vigilant about the ways in which these new methods might be exposing them to potential legal risks.
A. Jonathan Trafimow is a Partner of Moritt Hock & Hamroff LLP and chair of the firm’s employment law practice group. Comment below or email firstname.lastname@example.org. Follow Workforce on Twitter at @workforcenews.