Diversity or Discrimination – What Are Your Hiring Concerns?

Affirmative action, equal opportunity employment, diversity, and inclusion — there are so many considerations when you’re trying to do the right thing as a business, hire the best people, and steer clear of anything associated with that nasty “D” word: discrimination.

In 2015, the Commonwealth of Pennsylvania passed the Apprenticeship and Training Act, which requires public employers’ apprenticeship programs to develop and implement an affirmative action plan in order to register with the Apprenticeship and Training Council.

“The purpose was to ‘equalize opportunity in apprenticeship’ for minorities and women,” Peggy Morcom, attorney with Buzgon Davis Law Offices in Lebanon, says.

Additionally, federal contractors and agencies that receive federal funding are required to adopt affirmative action plans. Generally, these statutes do not apply to private-sector employers, unless the business is a federal contractor.

There are, however, federal and state statutes that address discrimination in the workplace. In Pennsylvania, the Pennsylvania Human Relations Act is applicable to employers that employ at least four or more employees.

Federal anti-discrimination statutes that apply to Pennsylvania employers, private and public sector, include the Age Discrimination in Employment Act, Americans with Disabilities Act, Title VII of the Civil Rights Act, Pregnancy Discrimination Act, Genetic Information Nondiscrimination Act, and Equal Pay Act.

The key to maintaining the best hiring practices is to develop practices that do not discriminate in favor of one candidate for employment over another candidate.

For example, some will argue that affirmative action is a form of reverse discrimination because it supports goals of identifying and selecting candidates from historically excluded groups, such as racial minorities and women. Hiring specifically from those groups, without consideration for the necessary job skills, would support that argument that such a practice discriminates against candidates who possess the requisite qualifications for the job.

However, when an employer attracts qualified candidates from a diverse pool, the end result is more likely to be a diverse workforce with the best candidates selected for the jobs.

The bottom line is that, in terms of equal opportunity employment, the employer must absolutely hire the best candidate, regardless …

Understanding Discrimination
When we hear the word discrimination, we often think of race, color, national origin, religion, age, sex, disability, sexual orientation, etc. — factors that easily translate to diversity. The opportunities for discrimination reach beyond those factors, although the lines can be blurry in combination with other issues.

“A risk to employers is a legal claim of a discriminatory practice or policy in hiring that involves automatically eliminating candidates for employment because they have a criminal record,” Morcom warns. “The Equal Employment Opportunity Commission closely scrutinizes exclusion of candidates based upon the individual’s criminal background.”

The EEOC relied on its own research to conclude that such practices could be discriminatory toward African-American and male candidates.

“This does not mean that an employer may not consider a candidate’s criminal convictions. There must be a substantial nexus between the criminal conviction and the position to be filled by the candidate,” Morcom says.

“A candidate for the position of bookkeeper could be legitimately excluded from consideration because he was convicted of theft, such as embezzlement. In contrast, a candidate for the position of welder may not be legitimately excluded from consideration because he was convicted of driving under the influence. There is no nexus between the position and crime for which the individual was convicted.”

According to Morcom, some local jurisdictions, such as Philadelphia, have enacted “ban the box” legislation to restrict and limit the use of criminal backgrounds in hiring and employment decisions.

The EEOC’s criminal history guidance sets forth three factors employers should consider:

• The nature and gravity of the offense/conduct
• The time that has passed since the offense/conduct and/or completion of sentence
• The nature of the position held or sought

Where the line blurs is when people view the practice of requiring a background check as a means to eliminate minority candidates.

The Best Way to Increase Diversity
If you’re looking to increase the diversity of your workforce, there are ways to do so without running the risk of discriminatory practices.

“It is important for employers to develop and maintain an equal employment opportunity policy, which provides principles that prohibit discrimination and harassment of any type and affords equal employment opportunities to employees and applicants without regard to protected classes, such as race, religion, age, sex, disability, etc.,” Morcom advises.

One of the best ways to increase diversity in the workplace is to look at your customer base — how do you best serve the needs of your customers?

A simple example: Perhaps you have a substantial Spanish-speaking customer base, and to effectively and efficiently serve your customers, it is important to retain at least one employee who is fluent in Spanish. The most qualified candidate for the job may very well be an individual of Hispanic descent, which may also add more diversity to your employee base.

Again, it is important to select the best candidate for the job, and the selection should be based on specific business needs.

If you want to increase the potential for attracting diverse candidates, you may look at your marketing and recruiting approaches.

“Recruit in places where those diverse populations have easy access, and advertise your company’s opportunities in diverse communities,” Morcom suggests.

While affirmative action may not substantially impact hiring in the Commonwealth of Pennsylvania, it is important to consider the legal ramifications of discrimination in making hiring decisions. Remember, if you develop hiring practices and policies that are based on the needs of your business and hire the best candidate for the job, you’re on the right track. BW