New England Biz Law Update
A new report recommends the use of audit testing to identify discrimination in the hiring process.
The authors advise that the U.S. Equal Employment Opportunity Commission (EEOC), as well as state and local fair employment practices agencies, deploy testing as a proactive approach to deter employment discrimination. Employers may wish to take note of the report for their own procedures.
The report, “Shifting the Burden of Proof: Using Audit Testing to Proactively Root Out Workplace Discrimination,” was issued by the Institute on Race, Power and Political Economy at The New School, and the National Employment Law Project.
Audit testing is also referred to as matched-pair testing. In such tests, two or more individuals with similar qualifications but of different race, gender, LGBTQ status, or other protected class would pose as applicants for the same job. The goal is to determine whether applicants are treated differently based on their identity.
If the EEOC and other agencies were to adopt such testing, it would change employer behavior, the report authors argue. If audit testing is implemented and employers understand its potential for enforcement, they may be more proactive in avoiding discrimination by implementing anti-bias practices in their hiring processes.
“A lion’s share of our current legal and employment infrastructure burdens the individual with the detection, reporting and prosecution for labor market discrimination,” said Darrick Hamilton, co-author of the report. That can be an onerous challenge, as employees rarely have insight into other candidates and their qualifications.
Current application: Matched testing is already a fairly common practice to combat housing discrimination, with audits being used in cities such as Milwaukee, Wisconsin; Spokane, Washington; and Chicago, Illinois.
In 2015, New York passed laws mandating its Human Rights Commission to engage in matched-pair testing to identify discrimination in both housing and employment practices. In 2019, the commission conducted 291 employment tests and filed 36 complaints to address discriminatory employment practices, according to its annual report.
Takeaway: Employers may wish to implement matched-pair testing in their own organizations as a way of identifying hiring bias and targeting education efforts.
