In our hiring training, we’ve told our managers to avoid information that is not job related, especially when it has to do with protected characteristics. But we still get a lot of details we shouldn’t know about in other ways. Some applicants send pictures with their e-mailed resumes and others send video resumes. What do we do when we get information we don’t really want? — Maggie, HR Director in Hayward
Inexpensive technology such as e-mail makes it almost unbelievably easy to share information with others. HR professionals are seeing an increase in the number of creative ways that job applicants attempt to showcase their talents, including video resumes. The technology is seductive. After all, what recruiter wouldn’t prefer to watch a video clip instead of reading another paper resume? The advantages also seem obvious. Every HR professional knows the “eyes are the window to the soul,” right?
Leave it to the lawyers (and the U.S. Equal Employment Opportunity Commission (EEOC)) to spoil something new and different. Conservative employment lawyers tend to agree (as I do) that video resumes present some degree of avoidable legal risk. The risk flows from potentially learning information in the hiring process that cannot lawfully be considered and typically is unavailable.
Race is just one example. In its published statement on the new “E-Race” initiative, the EEOC has stated: “[A]n employer’s reliance on new technology in job searches, such as video resumes, could lead to intentional race or color discrimination based on appearance or a disproportionate exclusion of applicants of color who may not have access to broadband equipped computers or video cameras.”
Other examples are easy to imagine. The video clip might directly or indirectly reveal whether the job applicant has a physical impairment (e.g., is in a wheelchair); is a member of a certain religion (e.g., has dreadlocks or wears religious apparel); is of advanced age; or has small children. (Regarding the latter and seemingly innocuous information, note the EEOC’s new Enforcement Guidance concerning “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities,” available at the EEOC website.)
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Does this mean employers should refuse to accept video resumes? The safest answer is undoubtedly yes. The employer that never learns about information that cannot be considered during the hiring process remains in the best position to defend itself against intentional discrimination, failure-to hire claims. Also, holding fast to written resumes maintains an even playing field for all applicants. And, because an employer cannot consider the information anyhow, it is hard to see what the employer is actually giving up (besides entertainment).
Is this to say that video resumes are anathema? No, they are not illegal per se. Therefore, each employer has to make its own risk-tolerance decision here. For example, some employers may welcome and have a business need for truly creative talent. Employers may mitigate the associated legal risks of using video resumes by not requiring them or by considering them only for certain positions. Another way to ensure there is no discrimination based on information revealed in a video resume is to interview all applicants who can satisfy the basic standards for the job opening.
One day video conferencing may replace in-person interviews and the like. Until that time, it is best for employers to make eyes-open decisions about how to handle and integrate emerging technologies and the hiring process.
Rod M. Fleigel, Esq., is a shareholder at the San Francisco office of the law firm Littler Mendelson.