How to deal with discrimination in your recruitment strategy
We've all been there. Your client gives you a recruitment brief and then says something about their preference (think 'pretty young blonde' on the front desk) that you know isn't right but also know that if you don't deliver, you won't secure the placement. So, what do you do when you're stuck between a rock and a hard place?
As recruiters, we're expected to deliver to our client's requirements but as professionals we also have an obligation to uphold the law and to educate our clients about the risks associated with unfair discrimination. This article will empower you with the right information and give you the confidence to talk openly with your clients when you're uncomfortable with what they expect from you.
What is fair vs. unfair discrimination?
Article 9 of the Constitution of South Africa guarantees the right to equality and protects all citizens from unfair discrimination. However, not all discrimination is automatically unfair.
Fair discrimination is when criteria, based on the requirements for the position, are used to assess candidates. Examples of fair discrimination include affirmative action, inherent requirements of the job or any discrimination made compulsory by law, e.g. a driver younger than 18 and who doesn't have a licence.
In South Africa, the Employment Equity Act (EEA) makes provision for fair discrimination on the basis of race or gender to redress imbalances of the past. However, you – as the recruiter – must manage this process carefully and ensure that when you're asked to recruit on this basis your recruitment strategy is based on a clear instruction, justified by the client's employment equity plan.
What are inherent requirements of a job?
Where a specific requirement is inherent in a particular job description – i.e. it's a non-negotiable for the person to perform a particular job - then discrimination may be acceptable. The example of an air steward's minimum height springs to mind. While it may be perceived to be simply about attractiveness, this requirement stems from the need to meet safety standards and could therefore be used as a discriminator during recruitment and selection.
Of course, always interrogate inherent requirements. Drivers licence or own car for a sales rep. sounds reasonable at first glance but could be challenged if, for example, the territory the sales rep need to service is limited to a city CBD where it's possible to walk or use public transport.
What aspects of the workplace would you have to consider?
Every workplace is unique and we often talk about 'corporate culture' and making the right fit with the organisation. This is a very important consideration but should never be used as an excuse to discriminate against candidates simply because they would make the workplace more diverse.
Culture fit could include elements like environment, open-plan offices, leadership style or team dynamic but should never be about overtly discriminating criteria such as race, gender, religion or sexual orientation, to name but a few.
Should you perform a credit check?
Many clients make clear credit references a requirement but this, in fact, isn't acceptable unless you perform credit checks according to the National Credit Act. An adverse credit record can only be used as a discriminator if the candidate will be employed in a position involving trust and integrity and will be responsible for handling cash or managing finances.
Was the discrimination performed to mitigate risk?
Responsibility (or liability) for discrimination depends on how or why the discrimination took place. In the case of permanent recruitment, an instruction from the client to discriminate and your decision to act on that instruction - given that you're employed as an agent of the client - would mean that the client would be solely liable for any discrimination claim. Of course, it would come down to proof and so if your client insists on any form of discriminating criteria, get the instruction in writing!
Your decision to tailor your recruitment strategy based on what you 'think' your client wants or needs would mean that you'd become the responsible party for the discrimination and would therefore become liable in the event of a claim. Wherever possible, educate the client about the law and how recruitment and selection should be managed to ensure full compliance and adherence to acceptable codes of best practice.
So the next time your client wants you only to send CVs of sales reps who could be South Africa's Next Top Model - or those who're not going to be "distracted by childcare responsibilities" - confidently advise them, as a true recruitment professional, of your concerns about discrimination risk and get yourself out of these sticky situations.
