Katharine Meyer, J.D., is a principal at GKG Law, P.C., in Washington, DC.
Association HR staff should review policies and practices around hiring and termination to reduce the likelihood that implicit bias is influencing their process and leaving their staff less diverse.
The recent Black Lives Matter protests have made many people look more closely at racism in the United States. While, presumably, every employer is aware that it is illegal to discriminate against employees based on race or color, many are now educating themselves as to how implicit bias and structural racism can play a part in employment decisions. Associations should review current policies to identify unconscious biases in standing employment procedures. By conducting this analysis, associations can take steps to create a more diverse workforce and safeguard against future possible discrimination claims. Below are recommended practices that can help limit discrimination in hiring and termination decisions.
Many employers and HR managers are unaware of how implicit bias can affect every part of the hiring process. To limit the impact of such biases, associations may want to consider the following when revising their hiring policies:
Job postings. Carefully review each job posting to determine the actual qualifications needed to perform a job. For instance, before requiring a certain level of education, make sure that type of education is needed to perform the job. There may be qualified applicants who have a great deal of experience but have not taken the traditional route to get to the position they are in now.
Associations also may want to re-evaluate and broaden where they list job postings. There may be other educational institutions, listing sites, and publications that cater to a more diverse group of qualified applicants. Additionally, in the association world, it is common for employers to learn about possible job applicants through word of mouth or referrals. While this may be an easier and less expensive way to hire, it greatly limits the ability of individuals outside the association’s network to learn about job opportunities.
Resume review. Resumes contain information about applicants that can be used to deduce their racial or ethnic background. Several studies show that individuals who have more ethnic-sounding names are less likely to make it to the interview stage of the hiring process. To help ensure that every candidate has an equal shot at the position, associations can create a “blind” resume review process. Before giving resumes to the person or committee reviewing them, remove the applicant’s name, address, education, and other information that could help identify a person’s race or ethnicity. By reviewing blind resumes, employers will be more likely to evaluate applicants based on their experience and accomplishments.
A job interview should be about determining whether a person has the proper qualifications for the position, not whether the applicant will fit into the interviewer’s social circle.
Interviews. The hiring process can go very wrong at the interview stage. Inexperienced interviewers sometimes make inappropriate comments or ask off-the-cuff questions that could be viewed as offensive or discriminatory. Additionally, conversational, unstructured interviews tend to focus less on the abilities of the applicant and more on the rapport between the interviewer and applicant.
A job interview should be about determining whether a person has the proper qualifications for the position, not whether the applicant will fit into the interviewer’s social circle. While fitting in to the “corporate culture” can be important, in order to keep the interview focused on the job, it is prudent to use the same list of preapproved questions for each interview. Structured interviews help employers base their decision on the skills and abilities of each applicant, as opposed to whether they have a lot in common with the interviewee.
Reductions in force. Unfortunately, over the past six months we have seen an overwhelming number of layoffs and firings due to the COVID-19 pandemic. While these terminations may be unavoidable, associations need to be careful to ensure that people of color are not disproportionately affected by them. The Equal Employment Opportunity Commission recommends that, prior to implementing a layoff or reduction in force, an organization conduct an adverse impact analysis to determine if it will result in a disproportionate dismissal of a protected group.
Terminations. It is crucial to carefully examine the reasons for terminating an employee of a protected class. While a person might be an “at will” employee, he or she still cannot be terminated because of discriminatory reasons. To help protect against an improper-termination claim, associations should have clear evidence that a termination was due to nondiscriminatory reasons. Therefore, it is important that the association document all performance issues or disciplinary actions of an employee at the time they occur.
Additionally, the reasons for termination must be uniformly applied. If a person is being terminated due to a violation of employment policy, such as tardiness, absenteeism, or conduct, the action must be consistent with past termination decisions. For instance, if a company terminates an African-American woman for chronic lateness but takes no action against a Caucasian woman who is frequently late, the termination may be viewed as discriminatory.
Any employer who has concerns or questions about hiring or terminating employees should consult legal counsel before taking action in order to assess potential risks.