U.S. EEOC Assistant Legal Counsel Carol Miaskoff brought up a few points in her Florida presentation (see video, below) that raised questions among ERE members.
I caught up with her on the phone to go over a few of those questions. Mary Kay Mauren, senior attorney advisor, was also on the call.
Peter Zollman, for example, wrote in his informative Classified Intelligence Report that he understood from Miaskoff’s presentation that:
If you find a job-seeker’s blog that shows him to be a racist, you cannot consider that information as you consider him for the position.
Zollman, I told Miaskoff, must have misunderstood. I asked her: “Since racists aren’t a protected class, you’re plenty able to reject them just for being racists, aren’t you?”
Video OK but Slippery
I’ve also been talking both on the phone and via email with Joyce Lain Kennedy, the careers columnist. Following the Miaskoff talk, Kennedy wanted to know if the EEOC expects “more official EEOC discrimination complaints in the future that are based on the growth of visual media showing ‘old, fat, ugly’ in the initial stages of the recruitment process?”
“Not necessarily at all,” says Miaskoff. “We see nothing to indicate that there will be a spike in complaints … (but) it also strikes us — a personal observation on my part — the video nature of it, the fact that you can sort of watch someone when you don’t have the social controls face-to-face where you have to keep your opinions to yourself, is sort of a slippery slope for people doing screening.”
In other words, she says, face to face, you’re more likely to keep your reactions and opinions (verbal or non-verbal) to yourself out of politeness or other social norms. With a video, Miaskoff says it’s a lot like watching TV, where you feel more detached.
Again, she says, the EEOC is not “battening down the hatches” for an increase in complaints about video resumes. But “if video resumes are part of the electronic trail in a case, we’ll follow it. It’s part of the record.”
Kennedy is concerned that bias will creep into companies that lack the budgets and staff to add in the checks and balances necessary to prevent discrimination that occurs after seeing a video. She gives the example of Stephen Hawking. What would happen if he had been screened via video?
Miaskoff says two things. One, there “needn’t be the Cadillac of controls.” Just some sort of policy or practice in place for personnel procedures, whether its hiring, promotion, demotion, and so on.
“You’re certainly better off if you have a policy and you give it to people and you train people and make sure they read it (and sign indicating they have), and repeat that process a few times a year — you’re certainly in a better place than if you don’t.”
The second thing Miaskoff says about video resumes is that it’s not like having a big staff and budget with HR pros and attorneys has ended discrimination anyhow. “People are not infallible,” she says.
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My coworker Elaine Rigoli says: “One question that was posed to me after her presentation focused more on legal issues surrounding existing staff (not those you want to hire off the street). For example, what to do when you discover that an otherwise great employee has a blog of some type that bashes the company/product/colleagues. Probation? Fire? Allow it?”
“That’s not an EEO issue,” Miaskoff says. “Unless the employer (for example) only discriminates against women who have nasty blogs about the employer, and doesn’t discriminate against men.”
John Zappe asks how the New Haven firefighters decision affected the determination of when something had an adverse impact on a protected class that rises to the level of a possible Title VII violation. What advice is the EEOC now offering to employers about determining adverse impact?
“We obviously have to comply with the Supreme Court,” Miaskoff says. “That’s the bottom line.”
I got the sense from that answer, and from Miaskoff’s tone, that the ruling made life more confusing for the EEOC.
Miaskoff says employers “need to go through the validation process for all of their tests. They need to do it carefully. They need to have their documents in place (showing) that they’ve done it. Once they move forward if a test is validated which it means it’s predictive of success in a particular job they’re hiring for, even if it has a disparate impact on minorities, it will be legal. People assume that if it has a disparate impact it will be illegal.”
If the test has a negative impact on minorities, she says, “the employer is in the spotlight and has to prove it’s truly predictive of success. Qualifications trump race.”
She says the general wisdom as she understands it, from talking to I/O psychologists, is that “written tests almost always have an impact on minorities, so you have to be careful. You have to make sure you’re using the least discriminatory alternative.” Some really big corporations, she says, are moving away from written tests and toward more functional tests.
Here’s the video of Miaskoff speaking at the ERE conference last month in Hollywood, Florida.