EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

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.

ADA, GINA, Title VII & ADEA: Video Resumes

September 21, 2010

Dear:

This is in response to your May 4, 2010 email inquiring about the legality, under the federal equal employment opportunity (EEO) laws, of screening job applicants based on video resumes and online professional and personal videos. Noting that your firm offers a video resume service, you observe that when presenting this technology to companies and universities, “the first question we are consistently asked is in regard to discrimination.”

As you know, the EEOC enforces the federal laws that prohibit employment discrimination by employers, employment agencies,¹ and labor organizations on the bases of race, color, religion, sex, national origin, age, disability, or genetic information.² Covered employers may include private and state and local government employers.³ Universities, as employers, are covered, but the EEO laws do not apply to universities’ decisions about admitting students.

The EEO laws prohibit these covered entities from recruiting and selecting new employees in a discriminatory way. The EEO laws do not expressly prohibit the use of specific technologies or methods for selecting employees, and therefore do not prohibit the use of video resumes. The key question under the EEO laws is how the selection tools are used.

Applicant Inquiries

If an EEO-covered entity directs job applicants to address specific topics in their video resumes, or to respond to particular questions, it must comply with the relevant provisions in the EEO laws. Under the ADA, covered entities are prohibited from asking job applicants to disclose their disabilities before the employment offer. 42 U.S.C. § 12112(d)(2). This would include prompting applicants to disclose their disabilities in video resumes that are used pre-offer.

A covered entity, however, does not violate the ADA if it observes from video images that an applicant has a disability. This is analogous to meeting an individual during the application process and observing that he has a disability. However, covered entities must avoid follow-up questions, or any other disability-related inquiries, prior to making a conditional offer of employment.⁴ After the conditional offer, but before work starts, covered entities are permitted to make disability-related inquiries (or require medical examinations) if they use the same inquiries or exams for everyone in the same job category.

In addition, GINA prohibits covered entities from acquiring genetic information, including family medical history, from applicants and employees. 42 U.S.C. § 2000ff-1(b). There are six exceptions to this prohibition, including one for the inadvertent acquisition of genetic information.⁵ Therefore, a covered entity does not violate GINA if it inadvertently acquires genetic information by watching a video resume. For example, a covered entity may learn that a job applicant selected a career in health care because his mother died of cancer at age 35 (family medical history). However, the covered entity may not ask any follow-up questions.

Title VII and the ADEA do not prohibit pre-offer inquiries -- in person or on a video -- about race, color, religion, national origin, sex, or age. Nonetheless, avoiding such inquiries to job applicants minimizes the risk of improperly using such information in the selection process.

Discrimination Generally

The most obvious violation of the EEO laws is where a selection decision is “driven by express . . . animus.”⁶ For example, if a Title VII covered entity identifies an applicant’s religion from viewing her religious garb in a video resume and rejects her application for employment on that basis, the covered entity has engaged in unlawful employment discrimination in violation of Title VII.

However, biased treatment is not always conscious. The EEO laws prohibit “not only decisions driven by . . . animosity, but also decisions infected by stereotyped thinking.”⁷ Because viewing a video may trigger unconscious bias,⁸ especially if opportunities for face-to face conversation are absent, covered entities should implement proactive measures, or best practices, to minimize this risk. For example, before using video resumes and other video screening devices, a covered entity could proactively formulate and communicate to selection officials how the video resumes can help assess specific qualifications and skills that are necessary for success in the position. Additionally, a covered entity could require that several people assess each video resume in relation to the stated job requirements.

I hope this information is useful to you. This is an informal discussion of the issues you raised and does not constitute an official opinion of the Equal Employment Opportunity Commission.

Sincerely,

Carol R. Miaskoff
Assistant Legal Counsel

Footnotes

¹ The EEO laws define an “employment agency” as any person, or agent of such person, “regularly undertaking with or without compensation to procure employees” for a covered employer or to procure for employees opportunities to work for an employer. 42 U.S.C. § 2000e(c) (Title VII definition of “employment agency”); 29 U.S.C. § 630(c) (ADEA definition); 42 U.S.C. § 12111(7) (adopting Title VII definition for ADA); 42 U.S.C. § 2000ff(2)(C) (GINA) (also adopting Title VII definition).

² 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. The U.S. Department of Justice, Civil Rights Division, Coordination and Review Section, enforces the civil rights laws applicable to educational programs that benefit from federal financial assistance. These laws include Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and Section 504 of the Rehabilitation Act. More information about these laws can be found at https://www.justice.gov/crt.

³ For a detailed discussion of covered employers see EEOC Compl. Man., Section 2, Threshold Issues at Section III.B. 1.a. (rev. 2009), available at http://www.eeoc.gov/policy/docs/threshold.html.

⁴ In some instances when an employer could reasonably believe that an applicant will need reasonable accommodation to perform the functions of the job, the employer may ask an applicant certain limited questions. Specifically, the employer may ask whether the applicant needs reasonable accommodation and what types of reasonable accommodation may be needed to perform the functions of the job. See EEOC Enforcement Guidance: Preemloyment Disability-Related Questions and Medical Examinations (10/10/95), available at http://www.eeoc.gov/policy/docs/preemp.html.

⁵ 42 U.S.C. § 2000ff-1(b).

⁶ EEOC Compl. Man., Section 15: Race & Color Discrimination, at Section V.A.1. (Apr. 19, 2006), available at http://www.eeoc.gov/policy/docs/race-color.html#VA1.

⁷Id.

⁸ See generally Project Implicit (Harvard Implicit Association Test) at https://implicit.harvard.edu/implicit/ For background information about the implicit association test, see https://implicit.harvard.edu/implicit/demo/background/index.jsp.

This page was last modified on November 4, 2010.

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