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A New Twist on Discrimination in Hiring

Here’s the scenario: As the human resources director for your company, you’re asked to sit in on the selection process for your company’s next CEO. After an intense screening process, you have three candidates to be the next leader of your company — a white male in his early 70s, a male in his 40s who appears to be African-American but has an Arabic-sounding middle name, and a woman in her 60s who was the wife of a former CEO. Each one falls into a protected category. How does an employer avoid discrimination or even the appearance of discrimination when making a hiring decision in this situation?

The first candidate is a white male in his early 70s. He’s a war veteran and has led other, smaller companies for years but is known for his old-fashioned leadership style. The second candidate, a male in his mid-40s, appears to be part African American, but you can’t be sure because his middle name sounds Arabic. He attended prestigious schools for his undergraduate and graduate degrees, and he has some experience running a company. The final candidate, who, let’s be honest, has created great division among the selection panel, is a female in her 60s and is married to a former CEO of your company (rumor has it he cheated on her while he was CEO). She has run a company for several years and in previous jobs led several initiatives, but some of those initiatives failed.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination

The selection panel decides to discuss the three candidates in turn. You furiously take notes on each panel member’s concerns. Your notes look like this:

Candidate No. 1.He’s so old. What if he falls over and dies? What if he has no new ideas? What if he runs the company just like the last CEO did? Wasn’t he in a war? I saw him at a function not too long ago, and it looks like he suffers from posttraumatic stress disorder (PTSD). We can’t have him acting weird at work. Did you see that YouTube video of him where he sang a song about bombing another company? Do we really want someone like that representing our company?

Candidate No. 2. His middle name is Abdul. Is he from the Middle East? What if he decides to blow up our company? What if he’s talking to terrorists? What if he wants the company to celebrate all sorts of special religious holidays? He can’t be absent for a million different holidays. I just think that the company isn’t ready for an African-American CEO. He’s openly admitted using cocaine on a recreational basis. I’m not sure we need a speed freak as our CEO.

Candidate No. 3. Ugh. Women CEOs are so aggressive. What if she gets emotional and starts to cry? We can’t have a CEO that cries at everything. We need a tougher image. She’s only this far in the selection process because her husband used to work here. Do you remember how badly she screwed up that other company’s health care plan? Do we really want her making the same mistakes here?

Somethin’ don’t sound quite right
Strange as those comments sound in the employment context, they were made on both sides of the political aisle during the 2008 lead-up to the election. Given the fodder this election cycle provided, it’s as good a time as any for a discrimination refresher course.

Candidate No. 1. There are several problems with the comments the selection panel made about the first candidate. The Age Discrimination in Employment Act (ADEA) prohibits discrimination against a person based on his age and, more specifically, protects individuals age 40 and older. The Americans with Disabilities Act (ADA) prohibits discrimination based on a person’s disability, which is defined as a “physical or mental impairment that substantially limits one or more of the major life activities of an individual.” The ADA also protects individuals if they’re perceived or regarded as having a disability.

The panel can’t lawfully refuse to hire the first candidate because he’s in his 70s or because of the stereotypes it has attached to him based on his age. Likewise, the panel can’t reject him out of hand because it perceives him as suffering from PTSD. Deciding that he has PTSD simply because he’s a veteran and rejecting him for that reason may also violate federal laws, such as the Uniformed Services Employment and Reemployment Act (USERRA), that protect veterans from job discrimination.

Candidate No. 2. There are also a lot of issues with the comments made about the second candidate. Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of, among other things, race, national origin, and religion. Clearly, any decision that’s based on a candidate’s race, which in this case is African American, is improper.

Also, assuming that someone is of a certain national origin and refusing to hire him because of some unfounded belief about what people of that origin might do can certainly lead to a national origin discrimination claim. Furthermore, the panel’s concern that he will be taking time off is directly tied to his (at this point, perceived) religion. The candidate can’t be treated differently than others in allowing him time off to celebrate his religion.

Candidate No. 3. Sex is also a protected class, and Title VII prohibits discrimination based on a person’s sex. Stereotypes are bad, and it’s clear the panel’s stereotypes regarding sex are shining through in discussing the third candidate. If the panel were to base its decision on those stereotypes, in which case it would be treating the female candidate differently than the men, its actions would constitute sex discrimination.

Well, how do I responsibly pick a CEO?
While most of the comments made by the selection panel are entirely inappropriate, some of the comments reflect legitimate, nondiscriminatory concerns. The fact that the first candidate has disparaged other companies and that his inappropriate behavior has ended up on the Internet may cause you to question his judgment and his ability to play nice in the corporate world. The second candidate’s admitted recreational drug use should also concern you because his use on the job could affect his and your company’s performance. Finally, the third candidate’s business missteps could lead you to a legitimate concern that she may repeat those mistakes.

Those concerns all reflect legitimate, nondiscriminatory considerations that should form the basis of your decision not to hire a candidate, rather the candidate’s age, race, sex, national origin, or any other protected classification.

State-by-state comparision of 50 laws in all 50 states including discrimination laws

Discrimination wrap-up
Prepare all panel members who are responsible for hiring new employees on their nondiscrimination obligations. Make sure they understand the work-related criteria for the job the employee is interviewing for and that they keep interview questions focused on those criteria. If any inappropriate comments are made during an interview, retrain the offenders, and discipline when necessary. Be sure to keep discrimination training current and let employees know that your workplace is harassment- and discrimination-free. Your workplace can’t afford a several- trillion-dollar budget deficit!

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