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Meeting of June 22, 2011 - Disparate Treatment in Hiring

Written Testimony of Katharine Kores
District Director, Memphis District

Introduction

My name is Katharine Kores. I am the Director of the Memphis Office of the EEOC. I am privileged to testify before you today on the EEOC’s efforts to eliminate hiring discrimination, and specifically discrimination in which disparate treatment is a principle factor.

In the nearly half century since the passage of the Civil Rights Act of 1964, many gains have been made in the effort to eliminate hiring discrimination, especially disparate treatment. At the time of Title VII’s passage, there was blatant exclusion of African-Americans, women, certain ethnic groups and individuals with disabilities from large sectors of the economy. Many of us recall the point in our nation’s history when help-wanted ads read “Whites-only” or “Men-only” and prohibited workers over a certain age from applying. We have come a long way since that time but disparate treatment in hiring remains a problem in the 21st Century workplace. As such, it is still a major area of concern for the EEOC.

EEOC Charge Statistics

Hiring cases can be extraordinarily difficult to identify and investigate. Applicants for positions often do not have the type of inside information necessary to infer discrimination, much less to establish that discrimination occurred. Individual job-seekers know only their own qualifications, how they learned of the employment opportunity, and their own impression of the interview. They don’t often know if or who the employer ultimately hired and what credentials that person possessed. Moreover, they don’t know the racial, gender, age and other composition of the employer’s workforce. As a result, it is difficult to gauge the prevalence of disparate treatment in hiring discrimination cases based on EEOC’s charges alone.

It is more likely that the difficulty in identifying and investigating these cases suppresses the number of charges we receive and masks the full extent of the problem.

From Fiscal Year 2009 through the first half of Fiscal Year 2011, charge receipts alleging hiring discrimination comprised six percent of all charge receipts filed nationally. The percentage of charge receipts alleging hiring discrimination ranged from 5.9 percent in FY2009, to 5.8 percent in FY2010, to 6.5 percent in the first half of FY2011. In the Memphis District, which includes all of Tennessee, Arkansas and the northern 17 counties in Mississippi, the percentage is slightly lower at just over five percent.

Of charge receipts alleging hiring discrimination filed nationally, discrimination on the basis of age is most prevalent. From Fiscal Year 2009 through the first half of Fiscal Year 2011, the percent of charge receipts alleging hiring discrimination based on age was nearly 38 percent of all charge receipts alleging hiring discrimination. This percentage ranged from 39.2 in FY2009, to 35.1 in Fiscal Year 2010, to 39.5 in the first half of Fiscal Year 2011.

The next highest basis is hiring discrimination based on race, which averaged 36 percent over the last two and one/half years. Race is followed by disability at 24 percent, and the fourth highest is gender at 20.9 percent of all charge receipts alleging hiring discrimination. Retaliation charges at 17.6 percent are not far behind.

EEOC Charge Trends

Given the difficulty in identifying and pursuing hiring discrimination cases, the disparate treatment charges EEOC does receive often involve fact patterns in which the discrimination is more obvious. Trends we have seen in recent years involve employers or recruiters who have:

  • Denied entry level positions to older workers, claiming that older applicants were over-qualified (even when they had not previously worked in the field) or that the jobs were being saved for high school and college students;
  • Failed to hire older workers because they assumed older applicants would not possess the requisite technological skills;
  • Failed to hire older workers because they believed the older workers would not remain on the job for an extended period of time;
  • Tracked workers by race, ethnicity, or gender into one job or another based on protected-characteristics or failing to hire by race, ethnicity, or gender for certain jobs;
  • Maintained a blanket no-hire policy for workers with certain disabilities without considering whether or not reasonable accommodations could be made;
  • Failed to hire currently pregnant women based on assumptions about their physical capabilities;
  • Retaliated against employees who complained about these practices; and
  • Preferred hiring of one racial or ethnic group over others based on stereotypes about those groups.

Staff from the Office of General Counsel will feature two of EEOC’s cases later in the meeting. I will mention a few here briefly as an illustration.

Age

In an Age Discrimination in Employment Act (ADEA) case litigated by the Commission’s Charlotte office against the City of Greensboro, the Charging Party, age 58, was the only candidate for an electronic repair position who possessed a required federal license. Despite the license, the City did not select him for the position. The Charging Party was the oldest of the five candidates under consideration, the others being 25, 30, 38 and 39. Though the employer asserted that the Charging Party received the third highest interview score, the employer failed to maintain interview notes and score sheets. This case was resolved with a consent decree providing over $90,000 to the Charging Party and requiring training on non-discrimination in hiring and preservation of documentation as well as reporting to the Commission on compliance with the decree.

In another case litigated by the Commission’s Philadelphia office, the Community College of Baltimore County refused to hire a 60 year old for a part-time temporary academic advisor position. The Charging Party had held a part-time staff support position with the college for about five years, possessed all stated job requirements, including education and experience working in student services, and was highly recommended by her supervisor. Nevertheless, the hiring official was dismissive of the Charging Party’s application and did not interview her for the position. Instead, the college hired a 29 and 23 year old with lesser qualifications. The case was resolved by a consent decree which provided $50,000 to the Charging Party and enjoined future age discrimination.

Race/National Origin

In a case out of my district in 2010, a consent decree was entered to resolve the Commission’s case against Paramount Staffing, a temporary employment agency which refused to place African-American workers at a particular work site, preferring instead to hire Hispanic workers. The decree ordered the company to pay $585,000 to a group of African-American workers and an injunction against future race or national origin based discrimination.

In a similar case, EEOC reached a conciliated settlement with an employer who was accused of discrimination in hiring based on non-Hispanic national origin. The respondent was a turnkey operator of the production line. Respondent’s own promotional materials stated that it catered to an exclusively Hispanic workforce. The investigation established that the employer hired only Hispanic workers for entry level production line jobs assuming that these workers would adhere better to production standards. The settlement ultimately benefited approximately 300 non-Hispanic victims.

The preference of Hispanic workers over non-Hispanic workers based on stereotypes – often negative – about both groups of workers is certainly something EEOC is seeing. EEOC v. Scrub, which will be discussed later, provides another such example.

Gender

Gender discrimination in hiring is also still a serious concern, especially with respect to tracking men and women into certain types of job.

In a Title VII case litigated by the Commission, a female applicant at Wally-Mo Trailers was denied a job as a welder-fabricator despite her qualifications because the employer’s policy was not to consider women for these jobs. The case was resolved with a consent decree, which required payment of compensatory damages, prohibited gender-based discrimination, and required training on non-discrimination for all employees involved in hiring.

In a similar case, resolved in conciliation, the employer’s Vice President for Human Resources stated that his company did not hire females for truck driver and grounds-men positions. A class of 23 females benefitted from the settlement and the company instituted a new HR recordkeeping system.

Men are also the victims of gender-based hiring discrimination. The Commission recently filed and resolved a case against Grand Casino for refusing to hire male applicants to work as beverage servers. The case was resolved with a consent decree, which required the payment of compensatory damages and the maintenance of applicant and hiring records.

Disability

With respect to disability, hiring discrimination remains a serious barrier to the employment of persons with disabilities. In a case litigated by the Memphis District office, Starbucks refused to hire an applicant because he had multiple sclerosis. The employer concluded, without inquiry, that the applicant would not be able to work behind the counter to serve customers. This case was resolved with a consent decree paying $80,000 to the Charging Party, enjoining disability-based hiring discrimination and requiring the employer to make good faith efforts to hire individuals with disabilities by notifying the local rehabilitation services agency of job vacancies.

EEOC is also currently investigating employers accused of maintaining a no-hire policy for individuals with certain types of prescriptions, like those for anti-anxiety medication, or with certain types of injuries, such as carpal tunnel.

Challenges for EEOC Investigations

As mentioned previously, hiring discrimination can be difficult to identify and investigate, even when it is easily identified.

The increased use of staffing agencies creates challenges for investigating hiring discrimination, where one company employs another to screen applicants. The laws EEOC enforces cover both employer and staffing and recruiting agencies. While most staffing agencies and recruiters comply with the law, there are those -whether on the request of the employer or on their own- who engage in disparate treatment against protected groups in their screening and placements. When this happens charges are filed against both the agency and the employer and the records of both companies must be reviewed, provided there are records to review.

All of the laws enforced by EEOC have recordkeeping requirements. Yet, as noted in many of the examples given previously, many employers do not comply with these requirements. And of those who do comply, they do not maintain records in a readily searchable format, which makes access to this information difficult. We have noticed, for example, that respondents with multiple locations may allow each location to determine how and where to maintain applications and personnel records. This makes it difficult to obtain complete and accurate information regarding who applied and who was hired for a position and to make the appropriate comparisons. Moreover, in the 21st century, many applications are solicited and submitted on the Internet. It is not uncommon for employers to fail to maintain all of the applications they receive. Likewise, applicants themselves often fail to keep a record of the applications that they submit.

Despite these hurdles, the EEOC uses a variety of tools and practices in order to effectively investigate charges of disparate treatment in hiring. In addition to doing in-depth interviews with charging parties, our investigators have access to EEO-1 data at their fingertips. Companies with over 100 employees are required to file EEO-1 forms, which numerically describe the composition of the workforce by race, gender, and position. Any investigator is able to review a snap shot of the employer’s workforce compared to similar employers in the geographic area. If a covered employer has failed to submit an EEO-1 form, the EEOC can compel compliance. By itself, EEO-1 data is not sufficient to determine whether or not there is merit to an allegation of hiring discrimination, but it may provide background information which will be helpful in framing the investigation.

In cases involving alleged discriminatory hiring policies, the investigator will request information from the employer regarding the types of personnel, hiring, payroll and other records it maintains and whether it is available in an electronically accessible format. We are assisted in devising these technical requests by a team of social science research analysts and labor economists who are on the staff of our Office of Research and Information Planning, nine of whom are assigned to work in EEOC district offices. After making the initial request for information regarding the employer’s records systems, a follow-up request for the information relevant to the charge will be made, asking that it be provided in electronic form. This enables our investigators, working with our in-house experts, to analyze the data to see whether the allegation of discrimination is supported or not.

Commissioners’ Charges and Directed Investigations

Most investigations conducted by the EEOC stem from charges of discrimination filed by private charging parties. However, the Commission does not always need a charge filed by a member of the public to initiate an investigation into discriminatory hiring. Pursuant to Title VII, discriminatory hiring practices may be investigated upon issuance of a Commissioner’s Charge. Such a charge is often based upon the recommendation of a District office when it acquires sound, but anecdotal information, perhaps as part of another investigation, regarding a company’s hiring practices. Moreover, under the ADEA, EEOC District Directors are authorized to initiate directed investigations into a company’s hiring practices. Commissioners’ Charges and the ADEA Directed Investigations are tools which allow the EEOC to look into discriminatory hiring practices, involving disparate treatment or otherwise, which, given the difficulty in identifying and investigating these cases, may otherwise go unchallenged if relying solely upon individual charges or private litigation.

The Commission is also aided in its investigations by the authority to subpoena information necessary to investigate charges of discrimination. Our investigators make every effort to obtain information from employers voluntarily. If these efforts are not successful, investigators are encouraged to work closely with our Legal units to draft subpoenas to be issued to the employer over the Director’s signature. If necessary, an action can be filed in court to enforce the subpoena.

Enforcement Strategy

Beyond investigation and litigation, the EEOC has other resources for addressing hiring discrimination. Any effective enforcement strategy for the 21st century must include an education component. It must be communicated that hiring based on an individual’s qualifications to perform a particular job is the best practice. It is important to note that diversity in and of itself is not necessarily a cure for hiring discrimination and that good people can still engage in unlawful hiring discrimination. Stereotypes persist in the 21st Century workplace and employers have to act affirmatively to ensure that they do not illegally influence hiring decisions.

It is also important to educate employers regarding their responsibilities under the laws to maintain records. Technologies exist to facilitate compliance with these requirements and employers should be encouraged to utilize these tools. The well-intentioned employer will be able to utilize the accessible information to proactively verify his/her own progress with respect to equal employment, in addition to being able to readily respond to EEOC information requests.

Since the Systemic Task Force Report was issued and adopted unanimously by the Commission in 2006, the EEOC has made substantial progress in the investigation and litigation of systemic, pattern and practice cases. We are committed to continuing to utilize the systemic approach to cases involving discriminatory hiring practices. This includes the use of Commissioners’ Charges and Directed Investigations, utilizing anecdotal information supported by EEO-1 data and knowledge we obtain from the investigation of other charges as well as living in the community. It also means coordinated investigations and litigation within the Commission and partnering with other Federal agencies such as the Departments of Labor and Justice. This systemic approach will allow the Commission to maximize its resources and to continue to make progress in investigating and remedying cases of disparate treatment in hiring.

Thank you for inviting me to testify, and I look forward to your questions.