How to deal with illegal discrimination as part of a decision-making group

Question

I've been assigned to run interviews for a position. The position has specific requirements and some preferentially desired candidate traits. I am supposed to evaluate candidates (often with some other members of the group sitting in, but I am primarily responsible for this part of the process) and send notes to everyone else so that we can come to a consensus.

The groups desired traits are illegal. Specifically, we have a qualified candidate about whom several other members have said things like "He seems nice, but it's hard to relate to people that are so much older than us. We should at least try to get someone closer to our age first" and "No one wants to have to work with someone old enough to be their parents".

We also have a less-qualified but not unqualified applicant that the other members of the group want to discriminate against because of their marital status/gender "She'll have to take too much time off to take care of her kid"-type stuff.

I strongly disapprove of these sorts of discrimination (and also they are illegal in my place of residence) but I am not sure what to do about it. The people involved in the group are young, politically active, anti-discrimination liberal folk who have thus far handwaved off my objections because 'this is different' (i.e. it affects them and regards prejudices they actually hold so it's inconvenient to deconstruct social oppression for them in this case (possibly this is a bit harsh) ).

I have the power to just pick a candidate over their objections or pretend we tried and couldn't get anyone else or whatever, but forcing a candidate down their throats and by extension the throat of the larger situation seems like a nuclear option that also doesn't resolve the underlying illegal decision-making process.

How should I handle this? The organization has no HR department and only a few employees so that the ban against discriminatory practice is industry-specific and local rather than the general prohibition the federal government instates via title VII. The CEO is out-of town for several weeks and isn't included in the group.

Answer 1

I've been assigned to run interviews for a position.

What kind of training have you done?

Have you told the interviewing team what they are expected to do? Specifically, have you informed them regarding the laws that must be adhered to during the interview process?

When the team said "it's hard to relate to people that are so much older than us. We should at least try to get someone closer to our age first" and "She'll have to take too much time off to take care of her kid" did you just remain silent? If so, that was a missed opportunity.

I'm stunned by the number of companies that put people on an interview team and never train them how to carry out that job correctly. You wouldn't have someone develop software without first being trained, would you? You would train a front-desk person on how to properly answer the phone and direct guests, right?

You have the opportunity to correct this situation before it gets out of hand. Schedule a training session for everyone involved immediately. Explain what you are looking for in a candidate and what their role is in the hiring process (as well as what their role is not - i.e., you have the power to make the hiring decision).

If you aren't capable or comfortable explaining the relevant laws that must be followed, hire a consultant to help. Your owner, CEO or Board will almost certainly be able to help you find one. Plenty are out there.

Answer 2

This is a great question, but I think the best answer is to get formal legal advice. Even if you know this behavior is illegal, part of an attorney's job is to advise clients on how to act within legal boundaries. You don't want to risk being held personally liable as part of a discrimination suit.

Certain legislation may not apply to your company, but there may be other rules and regulations that do -- plus your company may grow in the future. In that event, you'll want to be informed as to what is required to comply.

Since this is ultimately for the benefit of your employer, you should not have to pay for legal advice yourself. Work with your company first, to see if they have an attorney you can consult who specializes in these cases.

Your company may not have one on retainer, but I imagine even a tiny company uses an attorney from time to time. Legal consulting is a normal business expense.

Answer 3

Take ownership of the process you've volunteered to run. If the group is wanting to use illegal criteria, you are responsible for excluding those criteria from the decision. If you feel the need to convince the team, search for examples of discrimination suits brought against employers for discrimination on the specific trait they are wanting to discriminate on. "Based on examples A, B, and C this is illegal. We wouldn't discriminate based on race and, for the very same reasons, we won't on age/family status."

The flip side of this is that if the team feels the specific candidate would be a poor fit (ie "I have a hard time relating to him" rather than "I have a hard time relating to people like him" or "he moved quite slowly" rather than "old people are slow") that is not only a legal criteria, it is a very good one. So in discussions about the candidates it is very important to make it about that individual as they are the one you would end up working with and only referring to points that can be backed up by resume/interview/references.

Answer 4

I would assume that these people are completely unaware of how awful their behaviour is, and they need to learn this very urgently.

If you don't employ someone because that person is black / brown / white / whatever skin colour, then it is illegal, and you are a racist asshole. If you don't employ someone because that person is male or because that person is female, then it is illegal, and you are a sexist asshole. If you don't employ someone because they are gay or lesbian, then it is illegal, and you are a homophobic asshole.

If you don't hire someone because that person is married, that's illegal and you are an asshole with no specific name to it as far as I know. If you don't hire someone because you don't work with someone older, it may not be illegal but you are an ageist asshole.

As a business, I would consider that older people don't tend to come to the office with a hangover on Monday, don't throw sickies all the time, give a shit about the quality of their work, and spend considerably less time on Facebook. On a personal basis, I would be wondering how many of these youngsters have every been borrowing money from their parents, how many have paid it back, and importantly how many would be able to support their parents if the parents can't find a job.