Another Way to Reduce Employment Discrimination: Benefits and Drawbacks

By Adams, Nye, Becht LLP
on July 3, 2013

1335487_check-box.jpgLooks like improvements in equal representation in employment have generally plateaued since the 1980s. An article recently came out in The Atlantic proposing a simple way to stop gender and racial employment discrimination that appears promising. The premise straight from The Atlantic: "use the power of social media and the principle of government transparency to allow workers and consumers themselves to apply pressure on discriminating employers."

The method: generating a certificate that compares the number of women and racial minorities in an office relative to the local population. As indicated by The Atlantic's sample chart, underrepresentation is indicated with a red negative sign while overrepresentation is indicated by a green positive sign. This certificate would be generated by a government agency like the Equal Employment Opportunity Commission (EEOC) or California's Department of Fair Employment and Housing, which theoretically would make it easier for employees or potential employees to report discriminatory violations to these government agencies.

How the idea would work was inspired by a few things. First was Kevin Stainback's book, Documenting Desegregation, where Stainback tracked occupational segregation over a 39-year period by comparing what percentages of white women and black men and women would have to change jobs to have the same representation in the workforce as white men. Based on the results, neither black men nor women of any color have made much progress in terms of representation since the 1980s.

Second was awareness that the EEOC requires every large employer with 15 or more employees to keep a simple accounting of its employees by sex and race in the prescribed occupational categories. When the of coupling this fact with the idea that many employers don't intentionally discriminate but just don't do enough to stop discriminatory behavior, the idea emerged of a way to use transparency to stop gender and racial discrimination.

Labeling companies in this manner helps give employees an insight into their employers' hiring practices as that information is not often readily available to employees. It's also cost-effective as companies are already required to submit employee demographic forms to the EEOC. The question still remains whether this labeling system would provide employees or potential employees enough incentive to report any violations to the EEOC.

To note, data on race and sex are self-identified by the employees. If an employee declines to self-identify then the employer may use employment records or other observational methods to acquire the requisite employee data. So to ensure that the chart is completely accurate, it's better if employees self-identify their race and sex rather than having the employer fill that out for them.

As to current employees this labeling method potentially has the capacity to reduce discrimination and retaliation, especially as it is illegal for employers to retaliate against employees for filing complaints to the EEOC. Still, not every employee may be aware of this fact. So fear may still linger for some employees whether it is in their best interest to file a claim. In this respect, the chart can be improved by writing a statement that it is illegal for the employer to retaliate against an employee for filing an EEOC complaint. Having the statement would help reduce potential fears of retaliation, plus can give an added incentive for employers to improve their hiring practices.

On the other hand, the chart may not give potential employees much incentive to contact potential employers of violations since any discrimination listed does not directly affect them. In that case they may simply choose to go to employers who are listed as nondiscriminatory. Still, an incentive to report any listed discrimination still exists since it will help reduce any discriminatory practices of employers.

The Atlantic's proposal to stop discriminatory practices doesn't have too many drawbacks - it's visual, simple, straightforward and doesn't involve the courts. Whether it will actually reduce or stop discriminatory practices depends on whether it will produce enough of a push for workers to report violations to the EEOC. But like The Atlantic states about its idea, "[I]t couldn't hurt."