6 minute read
Implicit Bias In Hiring
Emma J. Darling, Associate
Let’s face it; school districts are always hiring. Every district sets a high bar when it comes to selecting the best possible staff. Studies have shown that every person carries implicit biases, and they can play a big role in the candidates selected. What is implicit bias, and how can someone ensure they are as biasfree as possible when making hiring decisions?
Biases are prejudices people hold in favor of or against people in a way that’s considered unfair. Implicit bias is defined as unconscious biases, perceptions, stereotypes, and beliefs we have developed from our past experiences and influences. While everyone may hold implicit biases to some degree, allowing them to influence hiring decisions could violate numerous laws, including Title VII of the Civil Rights Act of 1964 (Title VII),1 the Americans with Disabilities Act of 1990 (ADA)2 and ADA Amendments Act of 2008, the Age Discrimination in Employment Act (ADEA),3 Section 1981,4 Section 504 of the Rehabilitation Act of 1973 (Section 504),5 and Genetic Information Nondiscrimination Act of 2008 (GINA).6
UNLAWFUL BIAS IN POLICY
Unlawful Bias in PolicyIt is an unlawful employment practice for a district to fail or refuse to hire . . . an individual because of such individual’s: (1) race, color, or national origin; (2) religion; (3) sex; (4) age; (5) disability; or (6) genetic information. Board Policy DAA(LEGAL). There is some important information to know about this policy and the law. First, sexual orientation and transgender status is now protected under sex discrimination. Second, age discrimination is generally only applicable to persons over the age of 40. Third, under religion, it is unlawful to inquire about the religious affiliation of anyone applying for employment at a public school. In practice, an example of this could asking
142 U.S. Code § 2000e et seq. 242 U.S.C. § 12101 et seq. 329 U.S.C. § 621 et seq. 442 U.S.C. § 1981. 529 U.S.C. § 794. 642 U.S.C. 2000ff et seq.
someone about their plans for winter break when you are actually asking whether they will be celebrating Christmas, Hannukah, Kwanza, etc. Seemingly innocent questions may violate the law, so if you are concerned about any of your interview questions, contact your school attorney.
OTHER PROHIBITED FORMS OF DISCRIMINATION UNDER POLICY
In addition to the six protected classes referenced above, there are two other forms of discrimination that are prohibited under policy DAA(LEGAL). The first is military service: the district cannot deny employment because a candidate is a member of a uniformed service. This means, for example, you cannot deny a candidate employment because they are in a military reserve and may be called upon for active duty. The second is bankruptcy discrimination: a district may not deny employment to a person who has filed bankruptcy.
DISPARATE TREATMENT AND DISPARATE IMPACT
Title VII proscribes hiring practices in which there is disparate treatment of candidates or a disparate impact. Disparate treatment is when members of a protected group are denied the same employment opportunities as other applicants outside their group. An example might be a district who only intends on hiring female kindergarten teachers. This is a disparate treatment of male candidates. Disparate impact occurs when an employer uses a hiring practice that causes a disparate, or disproportional, impact on a protected group and the employer cannot show that this practice is jobrelated and consistent with business necessity. These tend to be benign on their face, but harmful in effect. An example could be in a job requirement for a new soccer coach that candidates must have played soccer. This would have a disparate impact on an individual with a disability who may have never physically played soccer. The candidate could still be an effective coach but could not be hired or could even not apply because the candidate did not fit the job’s written description.
WHAT TO KNOW IF A CANDIDATE FILES DISCRIMINATION CHARGES
If you do not select a candidate, and the person believes your action was discriminatory, the person may file a charge with the Texas Workforce Commission (TWC) or the Equal Employment Opportunity Commission (EEOC). In this event, the candidate will include in the charge of discrimination basis for the claim that the person was not hired based on one or more protected classes. Here’s what a district should do to assist their legal counsel in defending such a charge. The burden on the district is to articulate a legitimate, nondiscriminatory reason for not hiring the candidate. The best way to prove this to an agency is through providing documentation. Take good notes when interviewing candidates, be able to clearly articulate the reasons the district chose the candidate who was eventually hired (or why the position remains open). Maintain the records of all the interviewees, including their applications, resumes and their responses to interview questions, if available. This may help justify how one candidate is more experience or more qualified for the position. Another good practice, when practicable, is to have more than one interviewer.
CONCLUSION
The best way to combat implicit biases is to be aware of them and not let them be the basis for your employment decisions. If you would like to find out your personal biases, Harvard University has a test you can use at: https://implicit.harvard.edu/implicit/ takeatest.html. If your biases affect the district’s hiring decisions, you could violate the law. If you have any questions on hiring or implicit bias, contact your school attorney.
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