NACE Journal, August 2021
Prescreening candidates for an employer: It is a request many career services professionals grapple with on a regular basis. Faculty members, too, are often tapped by recruiters to identify their “best” students. Beyond the host of ethical issues involved in such a request, there are very real legal implications.
If career center staff or faculty members prescreen candidates, they are, in effect, acting as a recruiter or referral agency, and the relevant laws that apply to such an entity would apply to the career center or faculty member.
The Potential for Discrimination—and Liability
Federal and most state antidiscrimination laws prohibit discrimination in “referral practices.” In this regard, an employment agency may not discriminate in classifications or referrals for employment; circulate any discriminatory statement, advertisement, or publication; or use discriminatory application forms or inquiries made in connection with prospective employment. Further, if an employment agency advances an employer’s discriminatory practices, both the employer and the agency may be held liable for discrimination. Additionally, Title IX prohibits sex discrimination in education programs and activities, which may include “referral practices” that discriminate against an individual or group of individuals based on their sex. As such, if the career center prescreens candidates in a discriminatory manner, it may be exposed to potential liability.
With regard to faculty, although federal antidiscrimination provisions typically apply only to “employers,” many states have adopted similar provisions that encompass individual employees and third parties. These state law provisions often make it unlawful for any individual or entity to “aid or abet” discriminatory employment practices. Additionally, educational institutions that accept federal funding may run afoul of Title VI of the Civil Rights Act of 1964, as amended, and/or the equal protection clause by implementing or endorsing discriminatory prescreening practices. Regardless of whether a member of the faculty can be held individually liable, however, the college or university may be held liable for the discriminatory acts of its employees, including faculty members. As such, if a faculty member has a practice of only providing recommendations or referring male students or students of a certain race, for example, the college or university may be subject to potential liability. Accordingly, a college or university should review any claims of discriminatory practices to ensure there are no potential violations of local, state, or federal law.
Justifying Selection Criteria
Once career services staff or a faculty member participates in the selection or referral process, they may have to justify the criteria upon which the screening was based, just like an employer or an employment agency. Problems occur when the criteria are facially discriminatory or have a discriminatory impact, such as when a career services office is asked to refer only minority students or a faculty member is asked to refer just female candidates. While such practices may be permissible under the law, depending on the circumstances, they will generally be subject to what is referred to as “strict scrutiny” if subject to a legal challenge. As a result, any such program must be narrowly tailored to remedy the present effects of past discrimination or implemented to promote diversity. It may be difficult for a career service staff member or faculty member to answer that question without getting into an in-depth discussion with the potential employer and conducting a legal analysis. A career services staff member or faculty member could not defend the action by saying the employer “told me to do it.” As noted earlier, the career center staff or faculty member may be liable for implementing the discriminatory practices of the employer.
As such, the less directly involved the career services staff and faculty are in making choices for employers, the less likely the staff and educational institution will become embroiled in administrative claims and litigation if a student believes that they were discriminated against as a result of not being selected to interview. In the event that a career center (or faculty member) decides to engage in screening or referral practices, it must ensure that the requests made by the employer are not discriminatory, are based upon legitimate business needs, and are in compliance with the applicable law.
Edward Easterly, Esq., is a founding partner of Hoffman Hlavac & Easterly and focuses his practice on labor and employment law and civil and commercial litigation. Easterly represents clients on a wide range of matters related to Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the Pennsylvania Labor Relations Act, and the Pennsylvania Human Relations Act. He advises clients, including human resources representatives and business owners, on a range of labor and employment matters, including the enforceability of employment agreements, unfair labor practice charges, wage and hour matters, discrimination and harassment issues, OSHA issues, I-9 compliance, and non-compete covenants. Easterly assists universities, private businesses, municipalities, utilities, manufacturers, and nonprofit organizations with their labor and employment matters.