Convincing Reluctant Candidates on the Right Day

If you were going to ask someone to marry you, you would know almost instinctively that there are certain times when your chances of getting a yes improve dramatically. Asking on Valentine’s Day, for example, would most likely get a yes, while asking on the day a close friend died would not only be in bad taste ó it would undoubtedly generate a no. Smart recruiters realize that it’s not just the attractiveness of the offer that gets reluctant candidates to say yes. It’s also the timing.

Look at a widely recognized recruiting event as an example. Let’s say you are trying to attract Shaquille O’Neal away from the Lakers when Phil Jackson was his coach. You could literally ask him if he was interested in another team, and each time he would sincerely say no. However, the day after Phil Jackson retired as coach, his answer might be an enthusiastic yes. The same “right day” phenomenon occurs when you’re asking a friend for a loan or asking your boss for a raise. Every recruiter encounters individuals whom they’re trying to attract, maybe over a period of months or years, who consistently turn them down. The candidates are polite about it, but they always say, “No, I’m happy where I am now.” The lesson to be learned is that while they consistently say “no,” there will be some days where the they would say yes to an offer to interview even though they said no emphatically the day before. The key is learning how to identify the “right day.”

Right Days and Wrong Days to Offer Someone a Chance for a New Opportunity

  • Wrong day: Any day during the week before a targeted individual is expected to hear about whether they got their expected promotion.

    Right day: The day after they were rejected for that promotion.

  • Wrong day: The day before management jobs are consolidated, right after a major merger.

    Right day: The day after your target candidate was not selected for that key job during the consolidation.

  • Wrong day: The two months before the target candidate gets a large year-end bonus.

    Right day: The day after the candidate gets the bonus and they can leave without a huge financial penalty.

  • Wrong day: A day before your target candidate receives a year-end performance appraisal where they expect to get significant praise and a big bonus.

    Right day: The day after they receive their below-average performance appraisal which includes no praise or bonus.

“Right” Business Days

The first category of “right days” to focus on are days in a target candidate’s business life that change their perspective on the future. In particular, you’re looking for events or occurrences that excite them to the point where they would never leave (so that you can give up) or that frustrate them to the point where they might leave tomorrow. Business events that tend to increase someone’s vulnerability to a recruiting sales pitch include:

  • Performance appraisals. It’s a good time to recruit on days right after a performance betrayal is completed and the period of time prior to the delivery of the appraisal, when they are nervous.
  • Bonus/options paid out. Individuals who have to wait nearly an entire year for the next bonus payout are vulnerable.
  • Boss or best friend leaves. If the employee is loyal — and great recruiting targets almost always are — that loyalty can change almost instantly when the employee’s supervisor or best friend leaves.

Other good recruiting opportunities related to business events present themselves when:

  • A major layoff is rumored, is soon to be announced, or has just been announced.
  • The employee is passed over for a promotion or overdue for promotion.
  • The employee is turned down for a raise.
  • A long-term project or product ends or is canceled.
  • A longtime CEO quits, or a new CEO takes over.
  • A major merger or acquisition is rumored or announced.
  • Budget is cut dramatically.
  • A pay or hiring freeze is implemented.
  • The stock price drops dramatically or to a new low. (This is especially powerful when individuals have stock options or have a large amount of own company stock in their 401k.)
  • A major loss in revenue or profit is announced.
  • A competitor trounces the company in the marketplace.
  • The organization is under accreditation or union-related troubles.
  • The organization is undergoing a major scandal or legal issues.
  • The relocation of the plant or office is speculated or announced.
  • A major upcoming drug or product is rejected by a regulatory agency.
  • A frequent traveler receives their annual announcement listing the miles they traveled that year (this may be a reminder to them that they travel too much).
  • Anything happens that damages a company.

Right Days Related to an Employee’s Personal Life

There are obviously events in an individual’s private life which tend to increase their vulnerability to a recruiting sales pitch. I realize that some of these are generalizations, but they might give you some indication of what an individual you’re targeting is thinking. It is important however to find out for each individual what triggers their frustration in their current job and their willingness to consider new jobs. If you or your firm has privacy policies, only select the items that fit within those policies. Some of these “right” personal events might include:

  • College graduation day (especially where the employee has attended night and weekend classes for a long period of time and upon graduation receives no recognition).
  • The day their youngest child graduates from college or from high school and moves out (indicating a relief from a financial burden).
  • The day a divorce is filed or completed.
  • When the employee or their spouse becomes pregnant, or a child is born or adopted.
  • When a child reaches daycare or elementary school age and the local schools are not very good.
  • When a parent or family member becomes gravely ill and requires personal attention.
  • Any holiday where you can catch an employee working at the office (especially if they have family).

Cookies, Days of Reflection, and Days When You Would Consider a Life Change

Days of reflection are days that people reconsider their lives and their jobs. On these days they ponder their future, and that thought process might cause them to seek out a new opportunity. When Michael Homula, the recruiting genius, was at FirstMerit Bank, he sent out cards and designer cookies to targeted individuals on their birthdays. These were individuals who were highly sought after but who had been reluctant to even come in for an interview. In one instance, 135 out of 170 individuals called the bank after receiving the cookie on their “right day.”

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This is a phenomenal response rate for any group of individuals, but a stratospheric result for individuals who had already expressed little or no interest in FirstMerit Bank. The great part about the cookie was that it tasted very good and that it took a long time to eat, which of course meant a long time to ponder and think. Michael has been criticized for this approach, but these critics are probably ancestors of the same people who criticized Columbus, the Wright Brothers, as well as Starbucks for charging three dollars for a cup of coffee. Sometimes you have to judge your degree of innovativeness by the number and type of people that criticize your new approach. Universal days of reflection include:

  • Birthdays.
  • Special birthdays where your target turns 30, 40, 50, or 65 (the probability that they are rethinking their life increases).
  • New Year’s Eve and New Year’s Day (remember this day varies around the world).
  • Christmas (especially when spent alone or away from home).
  • Valentine’s Day (especially when spent alone or away from home).

Bad Weather Days Are Right Days

One California police department actually chose to run a videotape recruiting police officers on the worst snow day of the year in a northern city. Of course, the video showed police officers on bicycles and in shorts as well as some other pictures of what you could only call “attractive citizens.” It really wasn’t fair — and of course it worked like gangbusters. The same approach worked in Florida after multi-hurricanes hit in just a short period of time and in California after several earthquakes hit simultaneously. “Right days” relating to natural phenomena include:

  • Right after major tornadoes, hurricanes, floods, and earthquakes.
  • Right after major snow storms, wind storms, or heat waves.
  • Right after major outbreaks of fire.
  • Right after a major outdoor sporting event in a warm-weather city is televised in cold-weather cities (and vice versa).
  • Right after a candidate has visited a warm or cold weather site on vacation.

“Their Location Is Going to Hell” Right Days

There are certain days and events that awaken people to the fact that they are living in the wrong city or region. If you’re trying to get a target candidate to relocate, there are just certain times when they’re more willing to listen. Identifying these occurrences can help you sell the candidate that now’s the time to move out of the geographic area. Some of those “time to move” events relating to quality-of-life include:

  • When negative crime statistics are announced.
  • When negative cost of living or housing expenses are announced.
  • When long commute times are publicized.
  • When large tax increases are announced.
  • When significant cuts in local services are announced.
  • When school closings are announced (especially if their children are involved).
  • When a plant closing results in the target’s spouse losing their job.

Each of these becomes more relevant if the schools, crime, taxes, or commute times are clearly superior in the region to which you want them to relocate.

Dr. John Sullivan, professor, author, corporate speaker, and advisor, is an internationally known HR thought-leader from the Silicon Valley who specializes in providing bold and high-business-impact talent management solutions.

He’s a prolific author with over 900 articles and 10 books covering all areas of talent management. He has written over a dozen white papers, conducted over 50 webinars, dozens of workshops, and he has been featured in over 35 videos. He is an engaging corporate speaker who has excited audiences at over 300 corporations/ organizations in 30 countries on all six continents. His ideas have appeared in every major business source including the Wall Street Journal, Fortune, BusinessWeek, Fast Company, CFO, Inc., NY Times, SmartMoney, USA Today, HBR, and the Financial Times. In addition, he writes for the WSJ Experts column. He has been interviewed on CNN and the CBS and ABC nightly news, NPR, as well many local TV and radio outlets. Fast Company called him the "Michael Jordan of Hiring," called him “the father of HR metrics,” and SHRM called him “One of the industry's most respected strategists." He was selected among HR’s “Top 10 Leading Thinkers” and he was ranked No. 8 among the top 25 online influencers in talent management. He served as the Chief Talent Officer of Agilent Technologies, the HP spinoff with 43,000 employees, and he was the CEO of the Business Development Center, a minority business consulting firm in Bakersfield, California. He is currently a Professor of Management at San Francisco State (1982 – present). His articles can be found all over the Internet and on his popular website and on He lives in Pacifica, California.



25 Comments on “Convincing Reluctant Candidates on the Right Day

  1. I think this is good content for a highly-situational recruiting event, and I stress ‘highly-situational’. I have been recruiting for over 12 years and have never spent that amount of effort to recruit someone who kept telling me ‘no’ (for whatever reasons). So, I don’t see much added value to mainstream recruiting efforts, since it’s pretty uncommon in recruiting to repeatedly contact a person about career opportunities when they keep telling you ‘no’, especially in my field of IT placements. (Caveat: Perhaps this article is more applicable to other fields, and I’m only speaking from my experience in high-tech recruiting. But it was written in a ubiquitous nature, so I think it should have some relevance to my field too–and nearly all of the examples given don’t work too well.)

    However, I think theme of the article, understanding environmental factors that constitute the landscape of a recruiting event is great–and it’s a key insight many folks focused on the tactical transactions of day-to-day recruiting sadly fail to appreciate. And, if anything, I applaud this article for reminding recruiters about this imporance of understanding environmental factors at play in recruiting (they are very real and very powerful, although not very visible at times). Where the article fails is in the examples, not the theme.

    In fact, understanding one’s environment is not a novel concept: ancient Greeks wrote about its importance. It’s a key element of LEAPS, which is a paradigm derived from Aristotle espousing an effective way to motivate others toward some desired result (e.g., selling, recruiting, etc.): logos, ethos, agora (which this article covers), pathos, syzygy.

    Simply put, ‘agora’ (meaning ‘a public area’) is the ability of good motivators to understand the evironment where they operate, so they can use these factors/considerations/events to their best advantage in galvanizing someone toward a desired result (okay, maybe that sentence wasn’t so simple). And this article gives lots of examples of many of these types of forces in a contempory work setting (which is entertaining to read, but not so practical when you think about how you’d actually use most of them when trying to recruit someone).

    I challenge you to read through that article again and ask yourself how much luck and/or research would be needed to utilize many of the environmental forces he mentioned (not to mention any potential compliance issues an internal recruiter should be anxious about asking anyone for some of the more personal questions), and I think it’s safe to say you’ll see my point about how nuanced this information really is in the everyday realm of recruiting people. Unless you are privy to this information from whatever channel beforehand, digging up this type of ‘dirt’ specifically to recruit someone would be a lot of work, which seems like more hassle than it’s worth (in my opinion).

    One final comment (sorry if I have come across as overly negative), but there are several instances of situations given advocating a good time to recruit someone (poor performance eval’s, missed promotions, etc.) that seem aimed at people I wouldn’t want to recruit anyway. I have yet to hear of an example of someone truly worth the effort of continued attempts to recruit them who gets ‘shafted’ by their current employer with some of the negative examples that make it a prime time to ‘pluck’ them. It is rare occurence indeed when a really great candidate is not recognized as a really great employee too. We all know it happens (life isn’t fair), but does it happen enough to include it in this type of article? Hmmmm ….

    Perhaps this happens more than I’ve seen (I’m only one data point out of many), and maybe it happens more often in other industries besides the high-tech sector. I just find it hard to believe.

    Bottom line: save for the cookie example (which, btw, was very interesting), there was not much I took away from this article that will improve my recruiting practice. Overall, it was an enjoyable read, and I think if the only thing a person takes away from this article is realizing the importance of environmental factors in recruiting–it will have been worth their time to read it.


  2. This is hilarious. There may be a direct or inverse co-relation between certain professional events & the candidate’s response to the same in terms of accepting the idea of a new job.

    However, like there is a ‘non-sense’ co-relation between size of one’s feet & his intellegence level, personal events hardly have the kind of direct impact like John would suggest.

    If I were to loose my dog tomorrow, the event would not be a headline in the local newspaper for the recruiter to know & secondly, he would be blasted even if he tried reaching.

  3. This is a well written article which reminds us how important timing can be when recruiting the candidate we want. This reinforces the need for a well managed contact system and to remain persistent. I have seen too many recruiters drop by the wayside because they failed to develop good contact habits and to be aware of when is the best time to contact a candidate.

  4. I guess I will really continue to receive flack for this, or Maybe I am really dumb, blind and stupid – So If that is the case please tell me and Please Advise Me – either as a recruiter or H.R manager How –

    The questions I may ask of a Candidate or Friend that may be considered legal of the marital status, What the Spouse does for a living, where and when the kids are going to school, the ages of the members of family and candidate, if they own a House, where the spouse works, (or even if they have a spouse) Birthday and other Personal family information?

    also can you please advise as to How do I store this ‘pertinent’ information in my computer or Data Files so that If I get audited it would not appear as though I am discriminating?

    Please forgive me if Maybe I am missing something here, so please If I am, please advise.

  5. The only line of questioning that you can ask is job related questions to keep yourself clear of discrimination. Never probe into family areas unless the candidate offers the information and then tread carefully.


  6. An interesting article. I really liked the cookie tactic used by Michael Homula.I also agree with John that some great candidates are worth pursuing and are definitely the right candidate under changed circumstances.

  7. Rob et al,
    There is a difference between hiring and recruiting. Building relationships with passive candidates in order to recruit them and hire them for the right opportunity requires knowing something about what motivates them. You can only know this by asking the right questions during your conversations with them. You may certainly legally ask the following types of questions in order to understand motive:

    What circumstances exist for you now that you would seek to improve, either personally or professionally, in considering another position?

    What benefits might be realized by those with whom you share your personal or professional life, if you made a change?

    What current dynamics, from both personal and professional perspectives, are not ‘ideal’ and how could they be changed to be more ‘ideal’, if you were king or queen for a day?

    Getting people to talk to you builds trust. No passive candidate is going to go through a recruitment process with you if he does not trust you. People only trust those they know. None of these types of questions, phrased properly and properly considered, constitute discrimination or illegality in any way.

  8. The best thing about ERE is the variety of contributors and perspectives. It lets me know that at times I am not the only one out there with a particular experience or at other times I see a way to differentiate from others.
    In dealing with suspects, prospects, and candidates appreciating the importance of Timing, Change, Recognition, Repetition, Differentiation — he/she remembered, and It’s about them NOT you is paramount.
    The articles and subsequent exchanges on ERE help keep the fires and ideas burning. That is the essence of recruiting — passion, continuous improvement, and novel approaches.

  9. Great Article!

    It is the materia prima (substance in alchemists’ recipes for turning lead into gold) for a niched recruiting desk.

    Deborah – thank you for taking the time to compose the post which I wanted to write. Gaining repoire with candidates at a higher personal level is about the development of trust. If people trust you, and feel you are acting in their best interests, they will share a great deal of personal information. To concur with your second post; it is all about inclusivity, not screening people out.

    The article outlined 2 distinct paths which are related to nurturing ongoing relationships with outstanding candidates. Because of the differences in approach, this easily could have been written as separate articles.

    The main theme was human nature, which does apply universally to our profession.

    In my experience, timing a call to discuss a pertinent life event (last kid graduated high school, the promotion that didn’t happen, wife looking to move closer to parents after they turn 80, etc.) endears me further than a birthday, easter, xmas card, or a cookie ever could. Probably because the only one that is slightly derived from my investing time is the birthday card.

    For example: Do you really value the New Year’s Card from your insurance rep., when you know it’s just part of a bulk mailing?

    I promise that it does not take any luck at all to get this information; but you’re correct that capturing the complete candidate profile of that ‘A’ player is very time intensive. Slow times to fill are common during the first year.

    From my view, this article was less about understanding the particular work environment, and more about truly addressing the process of delivering to your candidates a path to their life interests/goals – which extend well beyond work, and into their personal lives.

    Regarding ‘aiming at people you wouldn’t want anyway’ there is an underlying assumption that their company is always right. We all know great candidates can be uncovered in less than ideal environments, or may not be the best fit for a particular company. The front page of the WSJ is full of instances where a flailing career is rescued by a change of employer.

    The point was missed if you are one of the people who think this has anything to do with the age of the candidate, or asking improper questions. Nothing is further from the truth.

    This article is another attempt to step away from the lowest common denominator in recruiting. We all know there are people in our profession who, either for lack of comfort or because they are just lazy, will not use many approaches available; just like there are some people will drive 53 mph on the freeway, for fear of a ticket.

    That’s okay, but the constant ‘sky is falling’ message is overly dramatic. If you don’t like it, don’t do it. It is not necessary to imply there are blatant flaws in everything that is different from your tried and true methods. Remember, we don’t all have to be the same.

    This article had great stuff, if you use it.

    Happy hunting!

  10. Sonya well said ?
    So Deborah, let’s say we do follow your suggestions and ask those well posed but very leading questions ? the candidates overcome their somewhat resentment as they know their families have nothing to do with the job itself, and now you have the responses

    Well ? how do you propose I store this ?pertinent? information ?
    Call back because the candidate will getting a divorce in 6 mths, oh by the way his wife hates her job and is thinking of quitting? Her twin Daughters will be graduating from XYZ college in 5 mths? Joe?s wife is expecting a baby in 3 mths.
    Send Birthday card or Cookie on 01/01/01 because Joe is Celebrating his 50?th Birthday

    Where am I to store it – On my computer? In a data spreadsheet? In a Candidate folder?

    We can ask these questions one day to the Wrong Candidate – One candidate feeling snubbed, feeling a little hurt because they didn?t get the job, and they think it may have had to do with those really little ?pertinent? questions, and one complaint to EEO, You now will be audited.

    During the Audit Now How then do I explain that my intent was not to discriminate? That my questions were purely ?innocent?? How do I explain what these questions had to do with the Candidates ability and work performance?

    Sometimes the best way to differentiate yourself is by personal attitude, integrity, and consideration to the people of the people we deal with every day.

    Respecting Candidates personal lives is Paramount not only for their welfare but ours as well. The welfare for Your job, company, or your bosses company.

  11. Questions of such nature are best reserved for those with whom the opportunity would represent a true and meaningful change such as substantial changes in type of duties performed, opportunities for management level positons, increased responsbility and accountability, relocation, etc. Such is not the case when sourcing candidates for positions such as day laborers or food service workers who simply decide to jump from one workplace to the one across the street to perform the same job. But the bottom line is that nearly everyone has reasons for making changes that go beyond the job description and compensation. I’ve had therapists make a change because the new job would be closer to their child’s school, etc. They know they can take their skills and training anywhere, so you need to touch on what dynamics are going to make the difference and hit their hot buttons. No information gained is meant to disqualify, but rather identify the reasons why the person might be a very good fit. This is not about discrimination in any way. Dr. Sullivan’s article merely points out that if you know something pertinent about your passive candidates, you can time your approaches to maximize interest.

  12. Deborah,
    One does not have to have the intent of Discrimination to be considered for discrimination.
    The appearance is all needs to have and is what can get a Company in trouble.

    And No this is not only happening to Temp to Hire — Here is an Example Cut and Pasted from HRM Guide ‘Spencer Stuart, a large employee search firm, illegally screened job candidates on the basis of age. Spencer Stuart was accused by AARP in October, 1998 with routinely violating the Age Discrimination in Employment Act (ADEA) through the practice of limiting search for suitable job candidates on the basis of the age-based preferences of its clients and disclosing age information to clients during candidates presentations’

    ‘EEOC New York District Director Spencer H. Lewis, Jr. issued a ‘Determination’ (final decision) memorandum to AARP and Spencer Stuart on March 15, stating that the search firm has ‘regularly continued to provide the ages of candidates either verbally or in WRITING to select clients’ – a practice illegal under the ADEA.’

    Taking this type of information which again has NOTHING to do with the Skills of the Applicant, or determines how well they may perform the job and maintaining it in a data base is only opening up a possible legal can of worms.

  13. Karen,
    I really tried to maintain my composure and be professional while having a discussion, but I have decided to be blunt.

    I’ve been doing this for 15 years, recruiting within industries and skill sets where conversations with passive candidates are primary and necessary if you want to succeed in filling positions. Professionals understand the nature, purpose, and tone of these questions and answer appropriately, I assure you. Nor do they then hire Perry Mason to sue somebody. Dr. Sullivan is not talking about pouncing upon candidates who have applied for the same job 15 times and have failed to be selected. I can see where someone like this just might get offended and gee, call out the hiring police or something. And who said anything about asking age? Again, the answers to these questions are analyzed for inclusion, not exclusion. The article refers to recruitment techniques for PASSIVE CANDIDATES which is inclusive not exclusive activity.

  14. Deborah,
    You said: ‘What benefits might be realized by those with whom you share your personal or professional life, if you made a change?’

    While I have no problem with this question with regard to asking if there are any professional changes made, and while this question may not be asked in a discriminating form or fashion, you are prompting the candidate for a response and setting the forum for them to disclose personal information to you that could result in a hiring manager not making a hire, (i.e. it’s a divorcee, a single mom, etc..) thus resulting in a discrimination case against your company if said candidate is not hired. I would advise you steer clear of discussing questions relative to anything outside if the candidates professional behaviour.

  15. Deborah:

    Would you ever present a candidate that would not reply to reasonable questions, or object or bristle in any way?
    We know that little trouble now is big trouble later. Some don’t.

  16. For any recruiter worth their weight in salt learning about your candidates is job one.

    One need not ask these questions as Karen assumes, most of this information comes out in the course of carrying out a professional conversation where the sincere interest is in getting to know the person behind the resume. Collecting said information with the intent to discriminate is wrong, and this article isn’t advising that.

    Lets stop all of this foolishness, managers descriminate daily, as do recruiters. In most case it is not systematic descrimination, and RARELY leads to any legal action.

    All of this talk about what may happen in dumb. This is similar to the policy folks who think that a policy needs to be written to restrict everyone because one person did something offensive. In a short period of time you end up witha massive index of policies (similar to our legal system) that is so complex and restrictive that it is illeagal to breath.

    I speed on the freeway, and i’m sure you do too! Lots of laws exist, and lots of things may happen, but in reality very little happens so get over it. This isn’t an approach you would employ to hire every Tom, Dick, and Harry, but it is most certainly one you would employ to hire an industry heavyweight or a top performer from a competing organization.

    Real recruiters recruit, get over it.

  17. Bill,
    These types of questions are only asked if I have engaged the candidate after he or she has expressed initial interest in making a change…they have responded in some affirmative way to my initial approach. Unless the conversation ends in full permission from the candidate to proceed with a confidential introduction to my client, I would not proceed to submit them, nor would they know the identity of my client. I want them eating out of my hand, not biting it.

  18. As someone who has been on both sides of the table, when a recruiter asks me something ‘illegal’ or otherwise unrelated to being able to do the job, I immediately downgrade the opportunity accordingly.

  19. Okay, please don’t kill the messanger here, but may I suggest to the group to please review the EEOC’s New Compliance Manual on Race and Color Discrimination that recently came out..

    Under Recruiting 15-VI It Clearly States the following –

    Who ultimately receives employment opportunities is highly dependent on how and where the employer looks for candidates. Accordingly, Title VII forbids not only recruitment practices that purposefully discriminate on the basis of race but also practices that disproportionately limit employment opportunities based on race and are not related to job requirements or business needs.(80) For example, recruiting from racially segregated sources, such as certain neighborhoods, schools, religious institutions, and social networks, leads to hiring that simply replicates societal patterns of racial segregation.

    I am kinda reading that Using Social Networks especially those with Pictures, Racial Information, Age, or other Discriminatory information is a No, No.
    Any thoughts

  20. Deborah,
    as I reread some of the posts regarding this topic I am wondering if many of you guys may have a good point..

    Okay, so based upon what we read with the EEOC – re Using these type of networks in recruiting – are they really saying No altogethor?

    I mean like you mentioned – If the recruiter or Manager has been consistent in not being discriminatory in their hiring practices, and they are using this as an inclusive hiring tool, is it really a problem?

    If you can prove that you are not discriminating.. then should we not be able to utilize all tools in our hiring process?

    Or… could we be opening up a proverbial can of Worms?

    Look on the 4th of May, I will be on a panel with the EEOC discussing this very sort of topics.. I think that this is a Good question to ask.

    The Webcast is free, and if you are interested in listening in go to

    I will post the response here..

  21. The EEOC does not have jurisdiction regarding the decisions of whom a company decides to hire, or even the methods of selection used. Their power is limited to determining whether discrimination occurs in a systemic or individual way. Let’s say I own a company, and I know I want to hire a specific person, who has specific knowledge and expertise as demonstrated by the very fact that he is operating with my competitor in his role. I can call that person up, invite him to golf or dinner, or even a game of paint-ball, if I want, and solicit him for hire. I do not have to open a position up for applicants or reach out to anyone else, if I do not see a business reason for it. They can only take action in the event of an individual or mass-action complaint, or an audit based on the reporting required by law sends up red flags. The EEOC cannot possibly be the czar of how a company decides to source for applicants. Even if this were a noble and reasonable cause, there is no way to cover all the bases. Even if they could require that all companies advertise all positions in every newspaper and on every job board in the country, or call every ‘diverse’ potential applicant by going through every phone book in every city, and such was within the realm of possibility, someone would find a way to define a missing link or flaw therein.

  22. I am playing Devil’s advocate here, cause I want to keep an open mind ?

    Some believe if the Company is using the information w/o Discriminating then what is the problem?

    Others believe that we should err on the side of caution ‘What if we turn down a candidate and for some reason they come back and say
    they have been discriminated against because of what they put on their site. This could be a big headache.’ Quoted from another group

    So I wonder if the information is not being viewed or used as a discriminatory selection process .. Well what is the problem? Just
    because this personal information is there it should be okay right?

    Or is it? I remember during Training that recruiters were not to accept or keep resumes with Personal info including Pictures ? have
    the candidate resubmit, to avoid the propensity for discrimination.. So I wonder, is that also extreme?

    To continue being devil’s advocate ? If one looks at the OFCCP’s Ruling re internet candidate ? Are we not supposed to collect
    Identifiable information if you are a government Contractor? Sure we are to separate the information (I think) ? but then again could that not be used for discrimination as well?

    So which then brings us back full circle, if it is okay to collect the data due to government Regs, why would it not be okay to use
    MySpace as long as one Was NOT using it to discriminate?

    But what about this ….. With the OFCCP the Candidates do have the Right to Decide whether to Self Identify or not, and with MySpace the candidates choice is taken away, as they have this information not in an employment Setting, but in a personal setting, and now the it is up to the employer to have that choice.

    Then there are also state Laws that can also supercede Federal Laws which can muddy waters even more. They as well as the EEOC have the tendancy to look at what you have done in the past, tools you use, who you have presented, interviewed or hired, versus who you haven’t to determine if there is discrimination or if there has been a tendency for discrimination.

    So, is it better to avoid tools that may have appeared to be discriminatory? Gee the expense alone in trying to prove your innocence would be amazing I am sure.. not to mention how time consuming

    This is indeed confusing ? What do You think?

  23. Sorry for the two posts but Actually there was a comment I did want to respond to as well

    Deborah, the EEOC/OSC can and has and will on many occassions go onto the internet and perform searches reviewing postings that are on the internet discriminatory.

    I know of a current situation where the EEOC has contacted a recruiter based upon a job board posting… they have requested an audit of this recruiter’s files.

    There are also Testers who will submit resumes to positions and companies as well. They have been known to select companies at Random. From the EEOC website ‘ Testers are individuals who apply for employment which they do not intend to accept, for the sole purpose of uncovering
    unlawful discriminatory hiring practices’ has a great article on this as well This is a great story written by a tester in Chicago

    Also the EEOC also has the ability to file a case on behalf of a Reluctant Employee who does not want to press charges.

    Please note these comments are generalized comments.. not specifics, and of course there have been occassions when even testers cases have been thrown out in court.

    This is an important subject, and is definitely one I will be posing with the EEOC at the debate.

  24. I agree and many courts have stated that neither the agencies (federal and state) have any real legal authority to interject themselves as ‘super personnel directors.’ Furthermore, the use of subjective factors in selection and hiring have been upheld time after time in the appellate courts. But, and it is an expensive and time consuming ‘butt’ for the ‘small business’ the agencies continue to interject themselves in the process. Not every complaint filed has merit. Some people file complaints simply to milk the system. Complaints are routinely filed with the help of state agencies intake officers without any prior review of the facts but which require often considerable time and expense for a simple response. Threats are routinely made by the agency personnel that unless a settlement is made the adjudicatory process will be be public and expensive and perhaps it will be best to settle. Case settlements look good for the agency statistics scoreboard. The fact is that it is a constant tug of war. Bias exists in bureacracies as well as in hiring departments. It is a practical matter. You have to have a system in place that mitigates the cost and damage that can result from a frivolous complaint.

  25. Karen:

    This whole matter comes down to risk aversion. There are so many laws, regulations and governing bodies, often contradicting each other that people seldom know what their exposure might be.
    One would ask, exposure to what?
    Many of these dangers are real, many are imagined, until , of course someone spills hot coffee on their own lap and sues the fellow who sold her the coffee and wins millions in damages.

    It’s hard to know what’s right when the courts behave like the red queen. This sort of thinking has crept into the zeitgeist. We all feel , to one extent or another, that we don’t know what’s right or wrong.

    If we attempt to ascertain all rules and regulations that may apply, in every situation and then second guess the possible interpretations of a judiciary that ranges from sober to insane, we will be driven insane ourselves. Do what the Lord would approve of, follow the law as best you can, play fair, question shortcuts and exercise good judgment and unless you are singled out, for some reason, to be a victim of the unjust, you’ll be fine.

    That being said, I think we all appreciate your research and informative posts.Keep it up.

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