Thursday, April 27, 2017

Protected Class Status Information: Think Before You Ask

An April 25th article in Fortune magazine caught our attention this week. Its title is “Goldman Sachs Wants to Know if You Are Gay” and it discusses Goldman’s efforts to measure its success in hiring LGBT applicants.  Chief among the company’s techniques is its practice of asking job applicants about their sexual orientation and transgender status. Doing so, according to Goldman’s chief diversity officer, allows Goldman to “keep [itself] accountable.” The article describes a process by which sexual orientation and transgender status data on applicants is recorded, “removed[d]…from the resume and interview process…” and compared to data about those actually hired to see if the proportion of LGBT applicants is reflected in the hired group.

We don’t know if the Fortune article is complete or accurate in its description of Goldman’s process, and we don’t know how successful Goldman’s efforts have been. Nevertheless, the article’s apparent acceptance of asking applicants about protected class status (such as a reference to “…the typical questions about a job applicant’s gender and race…”) struck us as a little too casual. Although there are limited circumstances in which it is appropriate for some employers to ask applicants or employees for information about protected class status, the information collected must be given voluntarily, must be kept separate from the application, and cannot ever be considered by those who make hiring decisions.

It’s also worth noting that there is no requirement that an employer track its applicants’ or employees’ LGBT status on the EEO-1 or otherwise, even though the EEOC takes the position that LGBT individuals are protected by Title VII.

As the Fortune article correctly states, some employers are required to track the nationality, race, and gender of employees. Generally speaking, employers with more than 100 employees and federal contractors with more than 50 employees and a government contract worth $50,000 or more must file EEO-1 forms annually. EEO-1 forms are completed based on “self-identification” of gender and race/ethnicity by applicants and employees when possible, but EEOC regulations are clear that the self-identification is voluntary and that employers may use visual surveys or other available information to complete the EEO-1. This sample employee questionnaire for self-identification of race and ethnicity, produced by the Equal Employment Advisory Council and referenced on the EEOC website, does a good job of explaining the voluntary nature of the requested disclosures.

Collecting or tracking data on applicants’ protected class status is generally only appropriate if the employer is subject to a court order requiring affirmative action, has a legitimate voluntary affirmative action plan, or is attempting to measure the success of its EEO or affirmative action efforts. As noted in this SHRM article from 2014, the EEOC permits the latter.  The collection of data must be done carefully, however, and must comply with the Uniform Guidelines on Employee Selection Procedures (UGESP) published by the EEOC in 1978. As with employee data, applicant data must be given voluntarily, kept separate from the general application, and considered only for legitimate purposes.

Goldman’s process of asking applicants for their LGBT status seems well-intentioned. It may be an effective part of that company’s diversity efforts. However, before other employers adopt such a process - or adopt any process that solicits or uses information that cannot be the basis for employment decisions – they should go back to basics and pay careful attention to the many constraints on the collection, retention, and use of protected class status information.

Posted by Judy Langevin