Three Tips to Avoid Gender Discrimination Allegations in Recruiting and Hiring

This week we have a guest blogger.  Her name is Rebecca Gray. Rebecca is a full-time blogger and an information security specialist from Backgroundchecks.org. Her writing focuses on helping consumers keep their private information safe. She also endorses each person’s right to access public information through background checks. Though she writes often about issues involving tech, security, and criminal justice, Rebecca also enjoys writing fiction—usually in the vein of popular thrillers and mysteries. After the jump, Rebecca will be sharing with us some tips on avoiding gender discrimination allegations when recruiting and hiring.

Women have made great strides in the workplace in the past few decades. We’ve come a long way from the days when it was acceptable for bosses and coworkers to openly discriminate against female employees and applicants. Sexist practices in hiring and firing, deep disparities in pay, and patronizing treatment of women in the workplace were once the norm. But we can’t afford to be complacent, as gender discrimination and inequality, intentional or not, still exist in the workplace.

Female workers in the U.S. are still paid only 77¢ for every dollar that men make, and only a little over 4 percent of chief executive officers at Fortune 500 companies are women. While not all of those disparities can necessarily be linked directly to discrimination (there’s a lot of debate about this issue), some outdated attitudes (and practices) still thrive beneath a modern veneer of egalitarianism.

Even well-meaning employers who are current on employment laws, and make every effort to be in compliance, can end up facing a gender discrimination complaint. Moreover, gender discrimination can work both ways, a point that employers who are now making a concentrated effort to recruit and hire more women need to keep in mind. While it’s good that tech and other companies in male-dominated industries are targeting qualified women, if a firm isn’t careful in its approach to recruitment and hiring, it can still end up with a discrimination complaint or lawsuit. (These concerns can be heightened when the employer is a federal contractor, and therefore subject to Affirmative Action requirements.)

If it all seems like a tightrope, it is. We live in a litigious society, as regular readers of this blog well know. But here are three major points to keep in mind to increase the chances that your company’s recruitment and hiring efforts don’t land you in hot water.

Tip 1. Recognize societal biases (and your own), and make sure your company’s policies and practices do not reinforce those biases.
A 2007 study by Cornell University revealed gender biases among job interviewers. Researchers submitted 1,276 phony resumes for real jobs listed in the classified section of a local newspaper. Although all resumes were equivalent regarding work experience and credentials, they varied in two personal details: gender, and whether or not the candidate had children. The results uncovered a hierarchy of what the study subjects perceived as “hirable” employees: the fake male candidates with children were considered the most hirable, followed by childless men and women. The least hirable were women with children. The subjects told researchers they thought women with children would be more likely to sacrifice their work for family, while at the same time they thought that male candidates with children were more responsible and therefore more desirable job candidates.

In effect this is what Ben Waber, writing in a January 2014 Bloomberg Business Week article (link below), called “a business culture in which men get bonus points for being fathers and women are penalized for being mothers.” Waber notes that business leaders can’t be expected to magically reduce or end gender bias. But businesses, through their recruitment, hiring, and employment policies and practices, can influence the larger culture for better or worse. Even the language used in employment listings, company policies, and company communications can deflect gender bias instead of reflecting and reinforcing it. It’s your choice. The first thing you as an employer or policymaker must do is to recognize and correct your own society-influenced biases.

For more about what the analytics say about gender inequality in the workplace, as well as the results of a study that explodes the myth of men’s and women’s differing work styles, see http://www.businessweek.com/articles/2014-01-30/gender-inequality-in-the-workplace-what-data-analytics-says

Tip 2. When interviewing women (or anyone!), avoid illegal interview questions.
This may seem like a no-brainer, and it’s an issue that has been hammered into recruiters’ heads for decades. (Click here  here and here for a review.) But it’s worth repeating, as some interviewers still ask illegal or borderline-illegal questions. It’s easy to make a mistake if you’re not careful. Even asking a casual, friendly, and seemingly non-threatening question about a woman interviewee’s family can be stepping into quicksand. For instance, if you ask a woman about how many children she has, or if she is planning on having kids, it could backfire should you happen to choose a male applicant. To be safe, avoid asking a woman about her husband, her children (or plans to have children), or any questions about her personal life. Also make sure you are current on all Equal Employment Opportunity Commission (EEOC) guidelines, as well as any other applicable laws and regulations.
For more details on illegal versus legal interview questions, see http://www.pacificu.edu/offices/hr/training/interview/pdfs/LegalOrIllegalInterviewQuestions.pdf

Tip 3. Be cautious with campaigns to recruit women workers, lest you be accused of discriminating against men.
How do you make an effort to recruit women without getting hit by gender-bias complaints from male prospects? Start by being proactive: your company should have a recruitment policy that appeals to a diverse group of potential applicants. Accordingly your recruitment efforts should be based on a combination of online and print media – classified ads, your company website(s), job boards, and professional and social networking sites.  While participation in job fairs is also important, make sure you don’t neglect internal job postings, to give current employees a chance at the job. Nevertheless it is possible to make it clear that you are strongly encouraging qualified female applicants, while still not ruling out qualified male applicants. To do this you need to create a corporate culture that encourages and supports women while not giving men short shrift. It’s a delicate balance, but it’s doable. The first step could be hiring a few qualified women who will in turn be able to attract more of the same, as noted in a    January 2014 Slate article,  http://www.slate.com/blogs/xx_factor/2014/01/07/hiring_women_in_male_dominated_fields_companies_need_women_to_recruit_other.html

This isn’t to suggest that you hire or promote women just because they’re women, but you must make special efforts to publicly demonstrate your openness to hiring women. An article cited in the link above suggests that you tell recruiters you want to see an equal number of highly qualified male and female candidates. That way you’ll attract the best women as well as the best men.

For information on hiring and retaining more women (specifically related to the tech industry, but also applicable in other industries), see http://www.fastcompany.com/3024764/dialed/how-to-really-hire-and-retain-more-women-in-tech. This piece focuses on companies that have successfully attracted women by creating good support systems and taking their advocacy efforts beyond their company.

We’ve made a lot of progress in recent years, but there’s still much to be made. As Ben Waber noted in the Business Week article linked to above, “Eliminating gender inequality in the workplace will require a sustained and generational effort, not unlike other civil rights movements in U.S. history.” If you make a sincere effort to participate in this effort, you’re on the right track.

Thank you Rebecca, for your insightful post!

Join The Emplawyerologist next week as it introduces a new topic, Employment Practices Liability Insurance!

Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.

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