SELECT PERSPECTIVES BLOG

Selective Hiring: Is It Really Illegal?

Posted by  Alissa Parr, Ph.D.

employee-selectionHave you ever noticed that when you go into an ethnic restaurant, the majority of the servers tend to represent that ethnicity? Most sushi places have Asian servers and Mexican cuisine restaurants have Latino servers. Do you think this is a coincidence? Alternatively, if you had a White waiter serve you sushi at a Japanese restaurant, would you be surprised and would this alter your meal experience? I recently listened to a podcast produced by the authors of Freakonomics that addressed a question related to this. In particular, do ethnic restaurants racially profile their employees and is it legal to do so?

The major question underlying this podcast is whether it is acceptable target recruitment towards a specific race/ethnicity and make hiring decisions based on one’s race/ethnicity. More specifically, in the restaurant industry, would the answer to this question differ? I immediately had an opinion about this topic, but was very interested to hear what they would say. Surprisingly, there were a few different opinions on the answer throughout the podcast, though.

Title VII, a component of The Civil Rights Act of 1964, is a law that prohibits employment discrimination on the basis of race, ethnicity, gender, and so forth. The black-and-white answer to this question is yes, this practice to hire based on one’s race/ethnicity is discriminatory and, therefore, illegal. There are a few exceptions to this answer. One of these exceptions is the size of the company. Under federal law, companies who employ less than 15 employees are not subject to this law. Additionally, some states have size requirements that hold even smaller companies accountable. Another exception is hiring based on a bona fide occupational qualification. A bona fide occupational qualification is a quality or trait that employers can use to make decisions because it is an essential trait of the job. In other cases of hiring, making employment decisions based on this trait would be considered illegal. For example, airlines hold age restrictions for pilots because they have been able to demonstrate that older pilots were significantly less safe once they reached a certain age. In this case, age would be considered a bona fide occupational qualification.

Unless these restaurants have a small workforce, these exceptions don’t apply. So, why do you think this is the case that ethnic restaurants tend employ servers of similar ethnicities? Well, first, I want to give a small disclosure. I’m not suggesting that all ethnic restaurants have employees who represent that ethnicity, nor am I suggesting that all ethnic restaurants racially profile or only hire employees who represent that ethnicity. However, back to the question, an alternative reason could be because of self-selection into these roles. It might be the case that Asians seeking a job in the service industry specifically search for Asian restaurants because it is what they are familiar with and what they enjoy. Similarly, Whites may be more inclined towards serving in restaurants that have “American” style cuisine. Therefore, it may be based on more the type of applicants who are applying for the positions (i.e., the candidate pool), rather than based on the hiring practices.

Interestingly, the podcast interviewed a lawyer who is a spokesperson for the Equal Employment Opportunity Commission (EEOC), the agency that enforces Title VII. She said that there have not been any lawsuits related to this issue at hand. The lawyer attributed this largely to the reason that the EEOC is a “charge-driven agency.” Meaning, the EEOC only takes on cases once it is presented to them; they do not seek discrimination. No one to her knowledge has brought this issue to the EEOC.

However, just because there haven’t been charges against employers, doesn’t mean the problem is not there. You should always be mindful of the criteria you are using to make an employment decision. Overall, the rule of thumb is that hiring decisions should be based on traits, skills, or abilities that are job-related and consistent with business necessity. Basing decisions off of these criteria can put you at less legal risk.

Listen to the podcast here: http://freakonomics.com/2015/06/24/is-it-okay-for-restaurants-to-racially-profile-their-employees-a-new-freakonomics-radio-episode/

The Ultimate Hiring Manager’s Guide

Tags:   hiring, EEOC

Alissa Parr, Ph.D.

Alissa is a Consulting Manager at Select International. Her areas of expertise include the development, implementation, and evaluation of assessment processes. Alissa has experience managing entry-level through executive level assessment and selection efforts across a number of different industries including government, financial, military, education, healthcare, and manufacturing.

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