The U.S. Equal Employment Opportunity Commission’s (“EEOC”) draft Strategic Plan for Fiscal Years 2012 to 2016 includes an important consideration for employers: one of the EEOC’s nationwide priorities is to eliminate systemic barriers in recruitment and hiring. The EEOC intends to target class-based intentional hiring discrimination and facially neutral hiring practices that adversely impact particular groups. The EEOC found that racial and ethnic minorities, older workers, women and people with disabilities continue to confront discriminatory policies and practices at the recruitment and hiring stages, including exclusionary policies and practices, the channeling/steering of individuals into specific jobs due to their status in a particular group, restrictive application processes and the use of screening tools (e.g., pre-employment tests, background screens, date of birth screens in online applications) that adversely impact groups protected under the law. Because of the access EEOC has to obtain data and documents and potential evidence of discrimination in recruitment and hiring, the EEOC has determined that it is better situated to address these issues than individuals or private attorneys who have difficulties obtaining such information.

The practical impact on employers is to make sure their recruitment and hiring policies, including pre-employment testing and other applicant screening practices, are in strict compliance with the law. Employers should examine any practices that get used companywide, especially tools used to eliminate candidates, such as background checks or testings, which may have a disparate impact. In fact, the use of criminal background checks recently came under scrutiny by the EEOC, where the EEOC stated an employer may use criminal history information to make employment decisions only when it is job related for the position in question and consistent with business necessity, as well as recent enough and sufficiently job-related to be predictive of performance in the position sought. Moreover, assessment tests used in hiring and promoting decisions must be carefully reviewed. Simply hiring a third party vendor to conduct assessments or create tools used for assessment purposes is not enough to ensure compliance with the law. Rather, the employer must ensure that the vendors’ assessment materials and processes are validated specifically for use on the group of jobs for which the employer intends to hire and to ensure that they do not inadvertently create a disparate impact that could subject the employer to exposure. Finally, employers should also increase training for employees involved in the hiring process in order to avoid an EEOC investigation into their hiring policies and practices.