EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
Title VII, ADA, GINA & ADEA: Video Interview
November 2, 2012
This is in response to your September 25, 2012 letter to the Equal Employment Opportunity Commission (EEOC or Commission), which enforces the federal equal employment opportunity (EEO) laws.(1) Your letter requests “clarification on interviewing in the talent acquisition process,” stating that your company offers an online interviewing tool, that, among other things, now requires employers “to proactively invite a candidate to a video interview.” Your central question is whether it would be EEO-compliant to forgo individualized invitations to candidates and, instead, to restructure the online interviewing tool to automatically refer candidates for video interviews. Your letter does not describe the range of consequences for candidates if they are unable or unwilling to complete a video interview.
We appreciate your consideration of EEO compliance. While the EEOC provides pertinent public guidance on its website, the EEOC does not offer prospective assessments of whether particular “talent acquisition tools” or employment selection procedures will be EEO – compliant when they are used. By way of example, the EEOC provides detailed guidance about using employment selection procedures (including tests) in a nondiscriminatory way, but the EEOC does not prospectively certify employment tests as EEO-compliant. (2)
The EEOC’s job is to investigate specific allegations --or “charges” -- of unlawful employment discrimination that are brought by applicants and employees, and then to determine whether or not it is likely that discrimination occurred as defined in the EEO laws.(3) A determination of whether discrimination occurred is highly fact-dependent. It depends on how (and for what purpose) a covered employer, employment agency, or union used a selection procedure in a particular “talent acquisition process” to screen candidates. Because these determinations depend on the facts of each situation as they develop, EEO compliance cannot be prospectively guaranteed.
The Commission’s regulations and policies set forth the legal principles that will guide the EEOC in applying the law to the factual circumstances put forward in charges. It is unlawful to use information about a person’s race, color, religion, national origin, sex, age over 40, disability, or genetic information as the basis for denying an employment opportunity. For example, it is unlawful for an entity covered by Title VII to screen out an individual based on race or color after seeing the person’s skin color in an interview. ADA-covered entities also have specific nondiscrimination and accommodation obligations with respect to individuals with disabilities.
The best advice for EEO-covered employers, employment agencies, and unions is to review the EEOC’s guidance and technical assistance posted online at http://www.eeoc.gov/laws/index.cfm. Documents relating to interviews include, among others, the Race and Color Discrimination Compliance Manual Section, the “Fact Sheet on Employment Tests and Selection Procedures” (includes disability issues); and the ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations. You also may want to consider the Compliance Manual Section on “Threshold Issues,” which explains when entities are subject to the EEO laws because they are covered employers, employment agencies, or unions.
Finally, the EEOC has not approved the use of a particular technology such as video interviewing in the recruitment or hiring process. Language on your website suggesting that the EEOC spoke in favor of video interviewing technology does not accurately reflect previous EEOC statements.
This discussion is an informal discussion of the issues you raised and is not an official opinion of the Equal Employment Opportunity Commission. For further information, please contact Carol R. Miaskoff, Assistant Legal Counsel, at (202) 663-4645.
Peggy R. Mastroianni
(1) The EEOC enforces the federal laws that prohibit employment discrimination by employers, employment agencies, and labor organizations on the bases of race, color, religion, sex, national origin, age, disability, or genetic information. Title VII of the Civil Rights Act of 1964, as amended (Title VII), 42 U.S.C. § 2000e et seq.; The Equal Pay Act of 1963, as amended (EPA), 29 U.S.C.§ 206(d); Title I of the Americans with Disabilities Act of 1990, as amended (ADA), 42 U.S.C. § 12101 et seq.; The Age Discrimination in Employment Act of 1967, as amended (ADEA), 29 U.S.C. § 621 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. § 2000ff et seq.
(2) See Uniform Guidelines on Employee Selection Procedures (UGESP), 29 CFR Part 1607.
(3) See, e.g., 42 U.S.C. § 2000e-5.
This page was last modified on December 6, 2012.
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