In today’s “war for talent,” how are you filling vacant positions? The fierce competition for workers has prompted many employers to take a more active approach in recruiting by targeting specific potential sources of candidates and leveraging employee referral programs.

As with almost all employment practices, employers should periodically evaluate the impacts and effectiveness of their recruitment efforts to avoid potential unintended consequences. A couple of recent cases highlight where an employer’s recruitment efforts can land it in hot water.

Targeted Postings

A 60-year-old applicant alleged age discrimination after she was not selected for a position with the Social Security Administration in Nevada. The agency conducted the recruitment by sending an email announcement to the UNLV law school and the Peace Corps.

When the 60-year-old applicant inquired, she was advised there were open positions, but she would need to apply soon as the recruitment was closing. She was never provided a job posting or description of the position. Although she submitted her resume, she was not selected. She was the sole applicant over 40 years old out of a pool of 26 applicants.

A jury will need to determine if the practice of notifying only certain populations of the job postings disadvantaged the applicant and others like her, which led them to be denied positions.

Local schools and organizations are a great source of potential talent. However, employers should ensure job vacancies are advertised in such a way that all qualified individuals are given an equal opportunity to apply and be considered.

Employee Referrals

The Department of Labor (DOL) claimed that a New York bakery’s practice of relying on word-of-mouth employee referrals contributed to hiring disparities impacting female, Black, and Asian applicants. “This investigation demonstrates that federal contractors should not rely solely on employee referrals to replace good faith outreach and recruitment, especially when their applicant pools do not resemble the available workforce in the communities they serve,” said Office of Federal Contract Compliance Programs Northeast Regional Director Diana Sen in New York City.

While this case involved a federal contractor, all employers who are subject to anti-discrimination laws are cautioned to consider how their employee referral programs and vacancy announcement practices may create disparate impact for certain potential candidates.

A key takeaway from these cases is that certain demographics were not really given the opportunity to be considered for the vacant positions. Employers should generally select the best qualified individual for an open position, regardless of any protected class status. However, employers may run into problems when the recruitment methods to get applicants systematically exclude certain groups.

See also EEOC Issues Guidance on the ADA and the Use of AI in Recruiting.