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Today, I would like to pick up on my series of discussions with regard to employee rights, and examine the role which the law should adopt with respect to the issue of equal opportunity in hiring practices.

Broadly speaking, I feel that the law should require employers to take reasonable steps to ensure fairness during the hiring process, but should not, in any way, restrict the right of employers to freely hire the candidate of their choice. 

 
Two conflicting rights
Equality of opportunity is a fundamental right to which all workers should be entitled.

One factor only should determine the successful candidate for a position – suitability for the position in question. Other factors, such as race, gender, age etc. should never have any impact upon the outcome whatsoever except for where they are relevant in determining candidate suitability for the position in question.

But employers, too, have a fundamental right to hire the candidate of their choice, and it is essential that laws which aim to prevent discrimination in hiring practices do not unduly impede upon this right.  

 
A poor approach
One approach which I feel should be avoided is for the law to adopt an overly prescriptive approach with respect to influencing the final hiring decision of the employer.

Such an approach could include, for example, laws which require employers to hire candidates from specified ‘disadvantaged’ groups in cases where candidates from such specified groups possess similar qualifications to those of other candidates.

This type of approach has several drawbacks:

• It infringes upon the right of employers to hire the candidate of their choice;
• It can be unfair toward candidates who are not from the prescribed disadvantaged groups;
• The process of determining which groups are included can become corrupted by political factors; and
• Such an overly prescriptive approach can cause the employer to place excessive weight on tangible factors, at the expense of less tangible factors.

With respect to the last point, tangible factors, such as professional status, qualifications or academic grades, are a good indicator technical capability, but are not a good indicator of other attributes such as cultural fit or suitability for the workplace environment.

Less tangible factors, such as the way in which candidates present themselves, often provide a better indication of such attributes, and it is imperative that these factors are given their due weight in the course of the hiring process. 

 
Instead, laws should focus on the hiring process
A more effective approach is for the law to focus predominately on the hiring process, as opposed to the hiring decision or outcome.

By focusing around the process, well designed laws can have far greater effect in terms of guaranteeing fair outcomes for candidates, without placing undue restriction upon the right of employers to hire the candidate of their choice.

This can be achieved via a two pronged approach.

 
• Prohibit certain types of questions during the interview process.

Employers should not be permitted to ask about issues such as political / religious beliefs or marital / parental status during the interview process.

This approach prevents discrimination with respect to attributes which are not visually apparent, since such restrictions make it difficult for the employer to ascertain information regarding candidate status in such areas.

 
• Require employers to demonstrate a fair hiring process.

Discrimination based upon visually apparent factors, such as skin color or physical disability, is not so easy to eliminate.

Nevertheless, the best approach is to subject employers to a broader requirement to demonstrate that reasonable steps have been taken toward ensuring that the hiring process provides a fair opportunity to all candidates.

(Naturally, exactly what constitutes ‘reasonable steps’ as referred to above will vary according to the circumstances of each individual employer, with large firms being subject to more extensive expectations than smaller ones)

This encourages a more deliberate approach toward the hiring process on the part of employers, resulting in a sharper focus with respect to the requirements of the position, in turn helping to reduce the impact of factors which are not relevant in determining suitability for the position concerned.

In addition, this broad based approach also helps to raise employer awareness about issues relating to equal opportunity, further helping to reduce the probability of discriminatory practices occurring.

 
In short
In summary, I believe that the law should require employers to demonstrate fairness in the hiring process, but should not restrict the right of employers to hire the candidate of their choice.