How Congress Could Reduce Job Discrimination by Promoting Anonymous Hiring
28 Pages Posted: 9 Jan 2012 Last revised: 25 Jun 2012
Date Written: June 22, 2012
The Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes made clear that Title VII can do little to address the problem of unintentional bias in employment decisions. This Note proposes a new legal solution to that problem: Congress should encourage firms to hire anonymously. The case for anonymous hiring — stripping resumes of all information related to race or sex, and eliminating selection interviews — rests on two lines of psychology research. First, experiments show that unconscious bias infects resume review and selection interviews, causing even well-intentioned employers to discriminate. Second, dozens of psychology studies suggest that interviews are poor tools for predicting job performance. Together, these studies suggest that anonymous hiring should both decrease discrimination and help firms hire more productive workers. This conclusion is counter intuitive, however, and firms need an incentive to hire anonymously. A new statutory defense to Title VII disparate treatment claims would provide that incentive, reducing liability insurance premiums for anonymous hirers. A fraud exception to this defense, together with continued disparate impact liability, would prevent firms from using anonymous hiring as a shelter for discrimination. Furthermore, anonymous hiring could incorporate affirmative action to break ties among similarly qualified applicants. The policy would also reduce hiring discrimination based on weight, size, or attractiveness — without changing federal law to protect those characteristics directly.
Keywords: employment discrimination
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