HIRING A DIVERSE, INCLUSIVE AND EFFECTIVE TEAM
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DIVERSITY LINKED TO BUSINESS GAINS COMPANIES THAT VALUE DIVERSITY SEE SEVERAL BUSINESS BENEFITS:
2.3x 35%
higher cash flow per employee Deloitte
greater chance of higher financial returns than their national industry median McKinsey & Company
More sales revenue, more customers and greater profits Harvard Business Review
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WHY EEOC COMPLIANCE MATTERS In addition to business gains, another reason to hire diverse candidates is to remain compliant with the Equal Employment Opportunity Commission (EEOC). The EEOC enforces federal laws making it illegal to discriminate against protected classes of individuals in hiring and all other work situations.
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WHY EEOC COMPLIANCE MATTERS TIME-CONSUMING INVESTIGATIONS CAN BE COSTLY AND DISRUPTIVE TO BUSINESS OPERATIONS:
482
$
MILLION in damages paid out in 2016 alone
An EEOC investigation typically takes about
10 MONTHS
to complete
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TEXAS ROADHOUSE’S $12 MILLION SETTLEMENT Lawsuit filed in 2011 and settled over five years later Found to have discriminated for years against workers over the age of 40 for front-of-house positions Hiring practices that result in the discrimination of a protected class of workers are illegal even if discrimination is not the intent.
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GENDER DISCRIMINATION: $89,371.24 IN LOST WAGES In Stukey v. United States Air Force, Linda Stukey, a woman, was asked several interview questions that male applicants were not asked. Those included questions on her “marital status, her ability to work with men, her opinions on traveling with men, and her child arrangements when she traveled.� A male candidate was offered the job, not Stukey.
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GENDER DISCRIMINATION: $89,371.24 IN LOST WAGES The court found that “the impropriety and sheer number of gender-based questions made it reasonable to conclude that the selection committee gave Stukey a low rating because of her sex.” Whether the discrimination was intentional, asking pointed gender-based questions of a female candidate that male candidates weren’t asked led to an expensive consequence. Stukey was awarded $89,371.24 in lost wages as a result of the suit.
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BUT I DON’T DISCRIMINATE! The vast majority of people don’t actively discriminate in hiring decisions. But standard hiring practices mean that inadvertent discrimination can and often does happen. Ill-advised (and sometimes illegal) questions, unconscious bias and the need to find a “fit” can: • Keep you from hiring the best candidate • Make a company vulnerable to claims of discrimination
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ALSO KNOW … It’s illegal for men and women at the same company to be paid different wages for the same job. Discrimination based on genetic information (including candidate illness or family history) is illegal. “Ban the Box” and ban on salary history inquiries may apply depending on office location.
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PROTECTED CLASSES UNDER THE EEOC You can make sure we don’t miss out on hiring the best candidates and help prevent costly, disruptive discrimination investigations. Here are the protected characteristics you should know when making hiring decisions.
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PROTECTED CLASSES UNDER THE EEOC
RACE, COLOR, NATION OF ORIGIN
AGE (OVER 40)
RELIGION
PERSONS WITH DISABILITIES
SEX (INCLUDING PREGNANCY)
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BUILD DIVERSITY AND PROTECT THE COMPANY Innocent, rapport-building questions may be construed as discrimination if the candidate does not get hired. Help protect yourself and the company by focusing solely on performance-based questions. In the next few slides you’ll find a few common tricky questions, and better ways to gather the information you need.
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FAMILY LIFE RISKY QUESTIONS:
Are you married? Will you be getting pregnant any time soon? Do you have kids? Tell me about your family! Are you going to quit working if you get pregnant?
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FAMILY LIFE THESE QUESTIONS ELICIT A RESPONSE ABOUT THE CANDIDATE’S PERSONAL LIFE AND LIVING SITUATION, WHICH VIOLATES THE PREGNANCY DISCRIMINATION ACT.
TO BUILD RAPPORT, ASK INSTEAD:
What are some professional goals you’ve set for yourself this year? Tell me about the method you used to set those goals. TO ASSESS THE CANDIDATE’S ABILITY TO MEET JOB REQUIREMENTS, ASK INSTEAD:
Can you work overtime or travel, if needed?
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RACE, COLOR, NATION OF ORIGIN RISKY QUESTIONS:
Where are you from? Where are you originally from? Where does your family live? That’s an interesting accent. Are you from … ?
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RACE, COLOR, NATION OF ORIGIN ASKING CANDIDATES A QUESTION THAT WOULD CAUSE THEM TO REVEAL THEIR NATIONAL ORIGIN VIOLATES TITLE VII OF THE CIVIL RIGHTS ACT OF 1964.
TO BUILD RAPPORT, ASK INSTEAD:
I see currently you [work/live] in [city/state]. What’s your favorite thing about [working/living] there? TO ASSESS THE CANDIDATE’S ABILITY TO MEET JOB REQUIREMENTS, ASK INSTEAD:
Are you authorized to work in the U.S.?
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MEDICAL CONDITIONS RISKY QUESTIONS:
Do you have any medical conditions that could keep you from doing the job? Any handicaps we should know about? Do you have any disabilities we’ll need to accommodate?
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MEDICAL CONDITIONS THOSE QUESTIONS VIOLATE TITLE I OF THE AMERICANS WITH DISABILITIES ACT OF 1990 AND MAY VIOLATE GENETIC INFORMATION NONDISCRIMINATION ACT OF 2008 (GINA) AS WELL.
INSTEAD, ASK:
Can you perform all of aspects of this job safely and satisfactorily?
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ILL-ADVISED AND ILLEGAL QUESTIONS While the questions we just covered are merely illadvised, questions about a person’s visible or invisible disability could be illegal, according to the Americans With Disabilities Act of 1990. Stick to performance-based questions, rather than questions designed to subjectively evaluate the person being interviewed.
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AVOIDING INTERVIEW PITFALLS Few managers want to actively discriminate against well-qualified candidates. However, this still can happen. Watch out for these inadvertent sources of discrimination: • Unconscious bias • The need to find a “fit”
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UNCONSCIOUS BIAS Unconscious bias can keep a company from hiring the best candidates. Interviewers are especially vulnerable to this when multiple people deliberate over candidates in several rounds of interviews. To avoid this, use standardized questions, take performance-based notes and use standard evaluation criteria.
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NEED TO FIND A “CULTURAL FIT” A candidate who works well with your team and adds value to the company culture is great. Unfortunately, looking for the wrong kind of “cultural fit” can lead to discrimination. “Cultural fit” doesn’t mean that a candidate shares a personal culture with your team, but instead that he or she fits the values of the corporate culture.
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IDENTIFYING “CULTURAL FIT” IDENTIFY THE MOST IMPORTANT QUALITIES OF YOUR TEAM OR ASPECTS OF COMPANY CULTURE, LIKE:
HARD-WORKING
PROBLEM SOLVERS
ATTENTION TO DETAIL
Ask how a candidate has demonstrated those traits in his or her past. Consciously avoid basing “fit” on whether candidates act, look or speak similarly to your existing employees. 23
DOCUMENTATION MATTERS! Take detailed notes during interviews on how candidates meet (or don’t meet) the position’s requirements. This helps you communicate with other interviewers if there are multiple candidates or multiple rounds of interviews. Documentation may help prove no discrimination happened if an allegation is made. Good documentation can help speed up an EEOC investigation.
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WHAT HAPPENS IF A CHARGE OF DISCRIMINATION IS MADE? EEOC notifies the business of a charge filed within 10 days of the filing. A charge of discrimination against your company does not mean your company is immediately assumed to be guilty.
THE TYPICAL INVESTIGATION LASTS
10 MONTHS
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EEOC INVESTIGATION PROCESS DURING THE INVESTIGATION, YOUR ORGANIZATION MAY BE ASKED TO:
Submit a statement of position to tell your side of the story. Answer a Request for Information (RFI), which may include sending personnel policies and files. Allow an on-site visit. This can make the investigation much quicker, may help the company reach a resolution faster and, in some cases, may serve as an alternative to an RFI. Allow witness interviews. 26
EEOC INVESTIGATION PROCESS ONCE AN INVESTIGATION IS COMPLETE:
The EEOC may determine no discrimination occurred. If the EEOC determines that discrimination has occurred, both parties will be invited to participate in conciliation, an informal process to resolve the charge. If conciliation does not result in a resolution, the EEOC or the charging party may file a lawsuit against your organization.
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RESOLVING AN EEOC CHARGE
THERE ARE THREE VOLUNTARY WAYS THE COMPANY CAN RESOLVE A CHARGE WITHOUT A LAWSUIT:
MEDIATION
SETTLEMENT
CONCILIATION
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RESOLVING AN EEOC CHARGE: MEDIATION
Voluntary, quick and confidential Successful mediation means there will be no investigation. Typically takes significantly less time than an investigation and can be less disruptive to business operations
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RESOLVING AN EEOC CHARGE: SETTLEMENT
Informal, no admission of liability Company may request a settlement any time during the investigation. Doing so early in the process may help the company reach a resolution more quickly than completing an investigation. If everyone is satisfied with the agreement (including the EEOC), the charge will be dismissed. 30
RESOLVING AN EEOC CHARGE: CONCILIATION
If there is “reasonable cause” to believe discrimination has occurred, this is the last chance to reach a resolution informally. A lawsuit may be filed by the candidate or the EEOC if a resolution is not achieved during conciliation.
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EYES ON THE PRIZE YOU WANT THE BEST, MOST EFFECTIVE TEAM SO THAT YOU CAN SUCCEED. VALUING DIVERSITY IS LINKED WITH KEY BUSINESS GAINS:
2.3x 3.5%
higher cash flow per employee Deloitte
greater chance of higher financial returns than their national industry median McKinsey & Company
More sales revenue, more customers and greater profits Harvard Business Review 32
EYES ON THE PRIZE
HIRING PRACTICES THAT GIVE EVERYONE A FAIR CHANCE EMPOWER YOU TO:
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build the most successful team
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Help protect the company from discrimination claims
THANK YOU FOR YOUR CONTINUED EFFORTS TO HELP US BUILD A DIVERSE, INCLUSIVE AND EFFECTIVE WORKFORCE!
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SOURCES Amadeo, Kimberly, “Cultural Diversity in the Workplace: How Diversity at Work Makes More Money for You,” The Balance, thebalance.com, June 10, 2017. Bersin, Josh, “Why Diversity and Inclusion Will Be a Top Priority for 2016,” Forbes, forbes.com, Dec. 6, 2015. Hunt, Vivian, Layton, Dennis, and Prince, Sara, “Why Diversity Matters,” McKinsey & Company, mckinsey.com, January 2015. Rock, David, Grant, Heidi, and Grey, Jacqui, “Diverse Teams Feel Less Comfortable – and That’s Why They Perform Better,” Harvard Business Review, Sept. 22, 2016. “EEOC Releases Fiscal Year 2016 Enforcement and Litigation Data,” U.S. Equal Employment Opportunity Commission, eeoc.gov, Jan. 18, 2017. Stempel, Jonathan, “Con Edison to Improve Hiring, Pay $800,000 to Settle U.S. Lawsuit,” reuters.com, Nov. 8, 2017. Goldstein, Dori, “More Laws Enacted to Ban Salary History Inquiries,” Bloomberg BNA, bna.com, July 5, 2017. Hartman, Mitchell, “The Old Salary History Question Could Be on Its Way Out for Good,” Marketplace, marketplace.org, Oct. 25, 2017. Maurer, Roy, “Ban-the-Box Movement Goes Viral,” Society for Human Resource Management, shrm.org, March 10, 2016.
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SOURCES EEOC Enforcement Guidance, “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” eeoc.gov, April 25, 2012. Davis, Laura, “You Can’t Ask That! Unmasking the Myths About ‘Illegal’ Pre-Employment Interview Questions,” ALSB Journal of Employment and Labor Law, Vol. 12, 39-57, Spring 2011. Burrell, Lisa, “We Just Can’t Handle Diversity,” Harvard Business Review, hbr.com, August 2016. Robert Half, “7 Interview Mistakes Most Managers Make,” The Robert Half Blog, roberthalf.com, April 22, 2017. Shaper, Shannon, “Hiring is the Most Important Thing You Do,” re:Work, rework.withgoogle.com, July 18, 2017. Quora, “How Hiring Practices Are Affecting Diversity in Your Office,” Forbes, forbes.com, Aug. 11, 2017. “Texas Roadhouse to Pay $12 Million to Settle EEOC Age Discrimination Lawsuit,” U.S. Equal Opportunity Commission, eeoc.gov, March 31, 2017. “EEOC, What You Can Expect After a Charge is Filed,” U.S. Equal Employment Opportunity Commission, eeoc.gov. “EEOC, Resolving a Charge,” U.S. Equal Employment Opportunity Commission, eeoc.gov.
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