EEOC Issues New Rules; How to Protect Yourself

If you're getting ready to interview applicants for a position with your company, there's now another reason to be sure your hiring practices are in order. Some of the applicants might not be real job seekers, but decoys known as "testers"-whose sole purpose is to scope out whether your hiring procedures are legal.

While testers have been used for years to expose racial discrimination in housing, increasingly they're pounding the pavement to uncover workplace bias. And, according to new guidelines just released by the U.S. Equal Employment Opportunity Commission (EEOC), testers can create serious problems if you're not scrupulous at every step of the hiring process.

What Are 'Testers"?

Typically, a civil rights organization or government agency will send a pair of individuals, such as a minority applicant and a white applicant, to apply for the same job, although they have no intention of accepting it if offered. The testers are matched to appear equally qualified in education, experience, references, and other relevant factors.

The next step is to compare their treatment at every phase of the hiring and selection process. For example, in the most blatant cases, employers have told black testers that a position has been filled, but moments later welcomed an application from a white tester.

Testers Have the Right to Sue

Critics argue that even if there's been unequal treatment, testers shouldn't be allowed to sue for employment discrimination because they weren't really seeking jobs, and therefore could not have been injured. But now, following the reasoning of the housing discrimination cases, the new EEOC guidelines state that individual employment testers can sue for emotional distress and punitive damages.

If discrimination is found, the EEOC says you can also be on the hook for the tester's attorneys' fees. Although the courts aren't absolutely bound to follow the EEOC's directions, they frequently look to them for guidance.

Protect Yourself

With any luck, you will never be targeted by testers. Nevertheless, there are steps you can take to protect yourself from claims of hiring discrimination, whether from decoys or from real job applicants.

1. Train everyone involved in the hiring and selection process. Make sure that all those participating in hiring, including potential coworkers who meet with an applicant, have a clear understanding of what they can and can't ask job candidates. To help ensure that interviews are conducted in a uniform manner, although it's awkward, consider using a checklist of questions that everyone must stick to.

2. Keep records. Be sure to document all of your contacts with applicants. Also keep brief, legible notes on the objective reasons for selecting or rejecting someone. Focus on whether the person has the required interpersonal skills, experience, education, licenses, or other skills-such as familiarity with your equipment or ability to type at a certain speed. And make sure that your notes are as objective as possible.

3. Don't accept unsolicited applications. Consider returning unsolicited resumes that are not sent in response to a job announcement. If you only accept applications for specific openings, it will be easier for you to show that the job's specific requirements determined why you selected one candidate over another. This policy also can reduce the chance that an applicant you barely considered will turn into a troublesome legal problem.