In the year 2007, there were 30,510 race-based discrimination charges claimed against US employers. In over half of these cases (16,773) the EEOC found no reasonable cause and the cases were dismissed.
I’ll say that again: over HALF the race-based cases were dismissed by the EEOC before they even got to court.
For all those employers who were falsely charged, this was a victory, but a shallow one.
How much time and money were spent between the time of accusation and the date the determination was made? How much bad press did the false accusation cause to the employer? And how much “he-said-she-said” went on during the legal discovery period to uncover any proof?
What if the technology that many are dismissing as discriminatory is actually the technology that can help prevent discrimination and at the same time provide employers with legal defensibility against unwarranted discrimination claims? Wouldn’t that be an interesting turn of events?
First, let’s consider Disparate Treatment and Disparate Impact, and what these mean to hiring managers and employers who choose to use video in the pre-screening and interviewing cycle.
Much of the concern regarding the use of video (video resumes, video interviews) in employment applications centers around one of these two legal theories. So let’s circle back and review these important definitions and their implications.
“Disparate Treatment” is a legal theory referring to when an employer intentionally (consciously or unconsciously) treats some people less favorably than others because of their race, color, religion, sex, or national origin, or applies rules or policies differently to one group than to a protected class.
The implication is that employers run the risk of being sued by an applicant who was not selected for hire due to his/her work skills but perceives that they were rejected due to their race, religion, color, sex, age, or disability.
For purposes of this discussion, it also means that an employer can be sued by this same job candidate for choosing not to interview him/her.
“Disparate Impact” results when an employer applies a rule or policy to all employees or applicants that has a different and more inhibiting effect on minority groups than on the majority.
There have been a number of cases lost by employers because their educational requirements for a job were higher than necessary for the job description (e.g. high school diploma necessary for janitors).
When an employer uses selection criteria that, intentional or not, screens out a disproportionate number of minorities, it creates an adverse impact. A job advertisement that only appears online may be de-selecting applicants who have no access to a computer. A job posting that appears only in Ivy League college alum newsletters could be discriminatory.
How these laws impact the use of video interviewing and video resumes:
Regarding discrimination in a general sense, there is no difference whether a human being looks at a live person or at a photograph of a person or at a video for 60 seconds and then decides he/she doesn’t want to talk to them, or consider them for a job. We’re talking about a human reaction here… good or bad. Humans discriminate. Cameras and computers don’t. But let’s examine whether or not the newest technology tool of video will help or hurt our collective quest to treat every job applicant equally.
If a video resume is used as the only selection criteria, then the risk of disparate treatment is high. Video resumes are usually a free-form creation from an applicant, submitted in random format not controlled or requested by employers. They are often simply spoken resumes in front of a camera. Therefore these submittals may not be consistent with other candidate documents or even other video submissions.
Employers making selection decisions based solely on random video submissions would be at risk. Contrast video resumes with EEO-compliant video interviews or better yet, full online candidate profiles that incorporate a video interview along with a resume and other career-related data.
Video resumes or even video interviews that contain information regarding characteristics of the applicant that are unrelated to a specific job function do provide more information than a paper resume would. But the compliant video interview is watched and rated by employers in the same way as an in-person interview would be conducted.
So, those who complain that a video contains protected class information should also be against all in-person interviews for this same reason. And banning all in-person interviews for fear of potential discrimination is not a realistic option.
Video used in selection needs to be in an employer controlled, structured format whether they are considered video resumes or video interviews or profiles that include a video interview. In the candidate selection process itself, the employer must be prepared to prove that every interview question asked is job-related to the position and is consistent with business necessity.
Allowing free form video that could contain non-job-related personal or social information puts an unnecessary burden on the employer to ignore that information in decision-making.
The theory that a video clip discloses sex, skin color, and age range and may lead to discrimination earlier in the interview cycle than an in-person interview would, is a non-issue.
If a hiring manager or recruiter is going to discriminate, they will. Forcing them to forego the video viewing and to interview candidates in person will not deter this.
Video should not be used to replace the resume, but in conjunction with it, adding another form of due diligence and information gathering for the screening committee to determine job-related and team fit.
As long as the structured video interview is centered on job relatedness and business necessity, there should be no difference in liability between a video interview and an in-person interview. Moreover, a structured set of legally compliant interview questions served up to the applicant on-screen during a video interview can eliminate the employer’s liability for the recruiter gone wild or the untrained hiring manager who likes to ad lib or stray from job-related questioning.
There are those who will argue that the use of video as a pre-screening tool will eliminate for the candidate the opportunity to actually see or hear the discrimination happen in person (remarks, slurs, jokes, body language) and therefore lose the direct evidence advantage to the candidate for litigation purposes.
If you make the assumption that not all applicants will have computers or the video equipment to film themselves, then yes, a policy that demands all applicants to submit a video would be creating an adverse impact. The resolution to that problem is not to make them mandatory until such time as the employer or the market makes that equipment available to all applicants in some fashion.
Employers should still accept paper resumes and digital resumes to avoid creating an unfair situation for those with no recording equipment.
The proper use of technology in sensitive applications such as the employment process provides a wealth of tools for protecting both the candidate and the employer from the occurrence of discrimination and the resulting loss of time, money, and mutual respect.
It goes without saying that it is best to be compliant with EEOC guidelines. The reality is that the new tools have the ability to track each viewing of sensitive candidate data by time and user, and literally force compliance at each step of the accept/reject process.
Video technology, executed correctly and used along with other due diligence data about a candidate, can be an invaluable tool to stem discrimination while at the same time providing employers with legal defensibility from unfounded discrimination claims — a result we would all like to see.
Popularity: 5% [?]
February 12th, 2009 at 6:47 am
I think that Colleen has written a fantastic article here and agree with all points – we are both in the video interview space although are on different sides of the Atlantic – the same applies whichever location you are in – used in the correct way video DOES have a place within recruitment processes. Companies like Talent on View and Interview Studio are trying to give recruiters and employers a controlled environ to use this amazing technology so that hiring processes can be streamlined and money can be saved.
February 17th, 2009 at 10:15 pm
Colleen,
You’ve thought it through and communicated it well!
I think you are correct to point out that an act of discrimination using a particular tool is not the fault of the tool. You are also correct in implying that video is not appropriate for every occasion. You are brilliant in pointing out that a video interview is a mechanism for controlling the questions put to the candidate, and responded to (essentially, a tool for compliance)!
I’ve thought about this a lot, though I’m sure not as much as you, and here are some of my random thoughts:
1. Video interviewing is not appropriate for all jobs and all situations, though many. It should not be required by the employer of all candidates. (Your disparate impact argument.)
2. I understand the concern about the “police-line-up-behind-the-two-way-mirror” aspect of the video interview. However, the reality of the matter is that most protected class information is disclosed in a written resume anyway (intentionally or not), so the video interview like any other interview is usually confirmation of impressions already disclosed.
3. The essence of the resistance to video interviewing is really whether the candidate feels they are competing for a job, or selling themselves to a prospective employer. If selling themselves, then video interviewing is an great marketing tool with no downside. If competing for a job, the assumption is that the man behind the two-way mirror is an older white male, which is often the case, but not always. It is entirely possible that those protected class characteristics the candidate would rather not disclose are the ones that might give them a competitive edge with the hiring manager (”reverse” discrimination, affirmative action, workplace diversity goals, etc.). (Your disparate treatment argument.)
4. I’m not sure where you got your EEOC numbers, but it would be interesting to know how many cases are brought to the EEOC regarding external hiring only (as opposed to promotion or termination). I would guess the external hiring number would be small, but I live in the Seattle bubble so my Weltanshauung is skewed.
5. Everyone knows that the largest chasm in the hiring process is between the submission of hiring materials (resume, etc.), and “getting an interview.” It seems to me that the advantage bridging that chasm with a video interview far outweighs the potential protected class rejection for the job.
6. For certain positions, a video interview could give the candidate the opportunity to display samples of their work product.
7. It seems to me that hiring is all about skills, experience, and “fit.” Skills are how you sort through resumes to determine who might be qualified to do the job, but rarely are skills tested during an interview. Experience comes to play when “where the candidate worked and what they did” is important, for whatever reason (competitors, similar industry, etc.). We often drill down into experience during an interview, for both skills experience and situational experience. “Fit” is just determining whether the candidate is a good match for the employer’s work environment. “Fit” is the problematic area, for while I don’t believe that an employer can reliably determine positive “fit” from a video interview, the negative, potentially discriminatory (beneficial and detrimental), aspects of “fit” can be. The problem you have is that, assuming skills and experience requirements are met, the rejection of the candidate based on “fit” moves from the live interview to the video interview, and it’s a one-sided, unobserved-by-the-candidate rejection. If I were an employer using video interviews as a tool, I would design the screening process so that if a candidate were rejected, the rejection would have to be based on skills and/or experience, and would document the reason to the candidate. (Anyone who has dealt with H1-B or Workforce/Labor Surplus compliance process would already have this mechanism in place, they would just have to apply it to candidates rather than compliance agencies.)
8. The bottom line is that the potential for discriminatory practices when using video interviews, though highly theoretical, to the candidates can feel very real, though there are easily ways to use the tool to mitigate those feelings. However, there are upsides to the candidates: jumping the chasm between resume and interview; the ability to put your best face forward in a controlled, deliberate interview; changing the focus to selling oneself (rather than competing based on cues from the live interviewer).
February 18th, 2009 at 2:02 pm
Hi Colleen,
what a wonderful article. Over the years the way on how we apply for jobs has changed consistently. And with unemployment rates rising daily, Employees need to become more creative in ways how they represent them self. Personally their is to much negative talk about Video Resumes. We experience a very large interest to use Video Resumes in addition to the standard resume. I was in touch with Joel Cheesman and he is not very optimistic in regards of using Video Resumes. The problem in the past was that Video Resumes were uploaded to youtube and creative a negative impact. No with secure sites such as http://www.mayomann.com this problems are solved and only potential employers are able to view the Video Resume.
Again, I would like to point out that this was a very well written Article.
Regards
Teresa Lindsay