Something to Talk About: Information Exchange Under Employment Law

44 Pages Posted: 19 Apr 2016 Last revised: 30 Apr 2016

See all articles by Joni Hersch

Joni Hersch

Vanderbilt University - Law School; IZA Institute of Labor Economics; Vanderbilt University - Owen Graduate School of Management; Vanderbilt University - College of Arts and Science - Department of Economics

Jennifer Bennett Shinall

Vanderbilt University - Law School

Date Written: April 14, 2016

Abstract

To avoid the appearance of sex discrimination that would violate Title VII of the Civil Rights Act, both Equal Employment Opportunity Commission (EEOC) guidance and a common misunderstanding of the law have resulted in little or no information about family status being provided in pre-employment interviews. To investigate whether concealing family information actually improves women’s employment prospects, we conduct an original experimental study fielded on more than 3,000 subjects. Our study provides the first ever evidence that concealing personal information lowers female applicants’ hiring prospects. Subjects overwhelmingly preferred to hire candidates who provided information, regardless of content. Any explanation improved employment prospects relative to no explanation for an otherwise identical job candidate. Our results are consistent with the behavioral economics theory of ambiguity aversion, which finds that individuals prefer known risks over unknown risks. These findings have broader implications regarding permissible pre-employment questions, as they suggest that restrictions on questions about matters such as criminal history and credit history, both of which are currently targeted by legislatures and by the EEOC for prohibition, may likewise have adverse effects on the classes of workers such restrictions are intended to protect. Finally, our findings suggest that the interactive process model of reasonable accommodation, embodied in the enforcement guidance for the Americans with Disabilities Act, may provide a better model for accommodation of work-family balance.

Keywords: Employment discrimination, hiring, ambiguity aversion, interactive process, reasonable accommodation, reentry

JEL Classification: J2, J7, K31

Suggested Citation

Hersch, Joni and Shinall, Jennifer Bennett, Something to Talk About: Information Exchange Under Employment Law (April 14, 2016). University of Pennsylvania Law Review, Vol. 165, 2017, Forthcoming; Vanderbilt Law and Economics Research Paper No. 16-7; Vanderbilt Public Law Research Paper No. 16-27. Available at SSRN: https://ssrn.com/abstract=2765455

Joni Hersch (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-343-7717 (Phone)
615-322-6631 (Fax)

HOME PAGE: http://law.vanderbilt.edu/go/phdlawecon

IZA Institute of Labor Economics ( email )

P.O. Box 7240
Bonn, D-53072
Germany

Vanderbilt University - Owen Graduate School of Management

401 21st Avenue South
Nashville, TN 37203
United States

Vanderbilt University - College of Arts and Science - Department of Economics

Box 1819 Station B
Nashville, TN 37235
United States

Jennifer Bennett Shinall

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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