Problem #2 to Avoid
Do Not Tell Your “selection” officials (for Hiring/Promotion/Termination) the race, sex, or national origin of your company/institution recruitment pools.
Note: I refer to “race” and national origin” and NOT “ethnicity.” Ethnicity is not a legal concept but rather is HR street jargon with an uncertain legal, anthropological, cultural, and/or sociological meaning. Neither Title VII nor Executive Order 11246, for example, make discrimination based on “ethnicity” unlawful. Rather, Title VII, as amended–from which the President hew Executive Order 11246, as amended–makes unlawful employment transactions “because of such individual’s race, color, religion, sex, or national origin.” Neither Title VII nor Executive Order 11246 refer to “ethnicity.”
Your selection officials do not need to know and SHOULD NOT KNOW the percentages of Black, White, Hispanic, Asian, Native American, etc. candidates in their selection pools for hiring, promotion, or termination. What is the intended benefit to the selection manager of such knowledge…other than to position that selection officer to engage in unlawful discrimination?
The percentage availabilities of candidates for selection are rather intended for different audiences within the corporation or the institution.” Those two audiences are:
- the recruiters so they know when they can stop “fishing” for candidates to fill a requisition with candidates representative of the availability of all races and national origins the AAP for Minorities and Women has calculated to be available in the marketplace to that contractor’s establishment; and
- the compliance/legal staff so they may undertake both required and desired compliance and legal risk evaluations.
Here is the architecture of Executive Order 11246. Once the recruiters have brought candidates to the corporation/institution for consideration for selection, the employment non-discrimination provisions of both Title VII and Executive Order 11246 then attach to judge the results of the selections to determine whether they are unlawfully discriminatory. So, it is the rejection for an employment opportunity which creates “adverse” action and the need to then judge whether the at-issue employment decision is unlawful.
Related High-Level Point of Law: It is not the hiring, promotion, involuntary termination, or compensation results that concern Title VII and/or Executive Order 11246. Rather, it is the adverse “employment decision” which is the object of proper evaluation to determine whether the at-issue adverse “decision” was unlawful. (This is one of the several reasons why, for example, all OFCCP compensation analyses (which only examine the pay results) are improperly conducted).
The BOTTOM LINE here is to build systems depriving your selection personnel from any knowledge of the race, sex and/or national origin of the candidates for selection as much as possible. Intentional unlawful discrimination cannot occur in the absence of knowledge of the race, sex, or national origin of the alleged victim of unlawful discrimination. Of course, many selection systems unavoidably cause the selection manager to know the race, sex, or gender of the candidate: Zoom interviews, in-office interviews, and educational histories often reveal race, sex, and/or gender. Nothing can be done about that discovery of the race, sex, and/or gender of the candidate.
But do control and limit the unnecessary delivery of race, national origin, and/or gender information to selection managers when you can deprive them of that information not necessary to their task of selecting candidates best suited for the jobs they have available.