Undercover agents target prejudiced hiring practices

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One US government agency has revealed a controversial new way its officials will be enforcing employment law and critics say if the underhand tactic spreads, it could prove costly for employers, reports a leading NYC publication.

Bill 690-A

Following the enactment of Bill 690-A, New York City’s Human Rights Commission is now required to conduct “matched-pair” testing on at least five employers’ hiring processes between October 1, 2015 and September 30, 2016, according to a news report by Crain's New York Business.

In the “matched-pair” test, two undercover officials will apply for, or inquire about, the same position at the same company – the testers will have similar qualification but one will have a characteristic protected by the city’s Human Rights Law.

An aggressive approach

While the scale might seem small in the grand scheme of things, experts say there’s no limit to the amount of tests the commission can carry out and warn that the latest law is a clear sign that a more aggressive approach is being adopted.

It’s not uncommon for government agencies like New York City’s Human Rights Commission to use investigators but their primary duties up until now have been to investigate complaints filed by aggrieved individuals – this new action marks one of the first times an agency will actively seek out discrimination on its own.

“This agency is supposed to enforce discrimination law, not create new actions,” Caroline Berdzik, an attorney who chairs the employment and healthcare practice at Goldberg Segalla, told Crain's New York Business. “This is going to open a whole can of worms,” she added.

Crossing the border

If the new law exposes Human Rights violations, it’s not unlikely that other jurisdictions will adopt a similar approach but is it really something that would work in Canada? HRM asked Vancouver-based employment lawyer David McWhinnie to weigh in.

“First of all, I think that the basic premise behind Bill 690-A is a laudable one,” McWhinnie told HRM. “It is always important to find ways to encourage employers to look beyond characteristics such as gender, orientation, race, age, or disability when choosing new employees.”

“However, I do think that there are some practical concerns with Bill 690-A that would make it challenging to implement anything similar in Canada,” he continued.
  • Funding and resources
After years of crippling budget cuts, the NYC Human Rights Commission has been promised significant increases in both funding and staffing – without which the execution of Bill 690-A would not be possible.  

“Human Rights tribunals in Canada simply do not have the same staff, legal powers, or resources as have been promised to the NYC HRC,” explains McWhinnie. “I could not say if there is any political will in Canada, either at the national or provincial level, to substantially increase the budget or powers of our Human Rights tribunals to anything close to that of the NYC HRC.”
  • Social climate
“Bill 690-A is also, as I understand it, aimed at least in part at notorious and systemic racial discrimination that is unequivocally a significant social issue in the U.S,” says McWhinnie.

“Without minimizing the harm caused by such conduct, or its widespread and insidious nature, the situation in Canada is not comparable,” he continues.

“Such issues attract less political rancor in a country where, for example, the biggest city in the most conservative Province enthusiastically elected a Muslim mayor – a mayor who, in his own words, ‘everyone thinks is gay.’”

Intrinsic weaknesses

It’s just Canada that would cause problems for the new law, McWhinney says there are some major intrinsic weaknesses to Bill 690-A.
  • Inaccurate results
“Providing two undercover ‘candidates’ with equal resumes does not obviate the possibility that one will simply form a better connection with the interviewer,” argues McWhinney. “From a procedural standpoint, I would be concerned that ‘matched-pair’ testing could lead to false positives or other inaccurate results.”
  • Overt characteristics
“’Matched-pair’ testing only appears to be focused on discrimination based on overt characteristics,” criticizes McWhinney.

While characteristics such as race and gender may be covered, sexual orientation and even mental disability are harder to evaluate on the spot.

“I have to say that I would be concerned about a program that devotes substantial resources to targeting only some forms of discrimination,” says McWhinney. “Doing so effectively establishes a hierarchy amongst protected characteristics rather than conveying the message that any discrimination or differential treatment should be discouraged.”

David McWhinney will be joined by his colleague Martin Sheard at the upcoming HR Masterclass in Vancouver. The pair will lead a session “The essentials: What you need to know for 2015” offering HR professionals invaluable insights into the most significant legislative changed of 2015.

Click here to find out more about the HR Masterclass.

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