Video Job Interviews: Legal Issues With Remote Access for Applicants
Many businesses are continuing to hire for open positions during the COVID-19 pandemic. Employers that need to continue their hiring processes may see video conferencing platforms as a valuable tool to complete job interviews while maintaining physical distancing. While affording interview participants a more personable experience than a simple telephone interview, these software services can raise unique challenges and potential legal issues that employers may want to take into consideration.
Disparate Impact Claims Related to Technology Access Concerns
Disparate impact claims allege that an employer’s neutral policy has a disproportionate impact on a particular class or classes of individuals protected by equal employment opportunity laws. When a company requires an individual to participate in a job interview by video, there may be an assumption that the candidate has access to the necessary technology. However, this may not always be the case—for a variety of reasons. A 2019 survey conducted by the Pew Research Center reported that older individuals may have less access to broadband internet at home, from where many job candidates will conduct video interviews. Another survey conducted by the Pew Research Center in 2019 reported that white respondents were more likely to own desktop or laptop computers than African-American or Hispanic respondents. The Equal Employment Opportunity Commission reported in its 2019, 2018, and 2017 fiscal year statistical releases that age and race were the two protected categories most identified with discrimination charges filed related to hiring issues. While some federal circuit courts of appeal have held that external job applicants may not pursue disparate impact claims under the Age Discrimination in Employment Act, state and local laws may continue to apply. To address potential issues of disproportionate impact, employers may want to consider remaining flexible and providing alternatives to job candidates who report they are unable to participate in video interviews due to technological limitations.
Accommodations for Individuals with Disabilities
Individuals with disabilities may experience similar access-to-technology issues that interfere with their ability to participate in a video interview. Unlike other federal laws, the Americans with Disabilities Act (ADA) may require a company to consider granting a reasonable accommodation that allows an individual to participate in a video interview or an alternative means of evaluation.
Unfamiliar Equal Employment Opportunity Protections
Candidates who sit for video interviews may be located in different cities, counties, or states than the potential employers conducting the interviews. The laws of these different geographic locations may provide unique equal employment opportunity protections. When a business rejects a candidate for employment, a question may arise regarding whether the employer made the decision based on a protected category established by the candidate’s local or state law. Whether such laws apply can be a complex question with an answer that depends, in part, on how a particular ordinance or statute defines an employer and an employer’s connection to that jurisdiction. Employers may want to consider reviewing and incorporating the protected categories established by the jurisdictions where candidates reside to avoid claims of unlawful bias in decisions about whether to make job offers.
The Unexpected Visitor to an Interview
Many people have seen a viral video or news story of a video news interview in which an interviewee’s child entered the camera’s view. Video interviews give employers insights into a candidate’s home circumstances to a greater degree that they could get from a discussion that takes place at the employer’s facility. An adverse employment decision based on concerns related to the individuals in the family’s home may give rise to claims of discrimination due to caregiver responsibilities under Title VII of the Civil Rights Act of 1964 or the ADA. Moreover, other information that can be gleaned from the background of the candidate’s video frame may convey information about protected category status. To help reduce the chance of learning about unwanted information, the interviewer may want to consider asking interviewees to utilize virtual backgrounds to eliminate background scenery.
Recording the Interview
Many video conferencing platforms make it easy to record a discussion for later review. While this may be a useful tool to allow nonparticipants to review the interview, the decision to use this feature may implicate state privacy and wiretapping laws that limit the right to record conversations. Generally, states fall into one of two groups with respect to wiretapping laws: (1) “one-party consent” states that require the approval of one party to the conversation to record it; or (2) “two-party” consent states that require the approval of all parties to the conversation to record it.
Again, complex questions related to which law applies can arise for businesses that sit in a one-party consent state while interview candidates participate in video interviews from two-party consent states. Employers may want to determine prior to any interview whether there is a need to record the interview, and if there is such a need, obtain the written consent of all participants in order to avoid concerns over obtaining the interview subject’s approval.
Artificial Intelligence Applied to Video Interviews
Some employers may consider using new developments in artificial intelligence (AI) software that can be applied to recordings of video interviews. These technologies can help to screen candidates based on the substance and manner of responses delivered to standard screening questions.
At a fundamental level, these applications are based on algorithms constructed by human programmers that may unintentionally incorporate discriminatory bias against certain groups of individuals. Employers that take advantage of AI in this regard may want to monitor and review the candidates who have not advanced in the hiring process to ensure individuals are not disproportionately affected on the basis of protected categories. Additionally, companies may consider asking their AI vendors for information about the algorithms that will be applied to their hiring processes to confirm individuals are not directly affected by their protected class status. For example, AI that eliminates candidates based on their failure to maintain eye contact could be the result of a physical or mental health condition.
Video interview technology provides an opportunity for employers to continue with their hiring processes while limiting physical contact. Employers may want to review, consider, and address the unique legal issues that are raised when conducting video interviews to make job candidate selections.
4 Disability Clichés, And What You Can Say Instead
Awkward silences beg to be filled. Sometimes it’s best to let them be, but these days it seems like we all feel compelled to share what insights we have on difficult and painful events, even if we don’t really have anything new to offer. Disabled people share a particular perspective on this.
For decades, well-meaning and self-aggrandizing people alike have drawn from the same small bundle of clichés and empty nostrums about disability. Mostly it’s non-disabled people trying to demonstrate understanding and solidarity with disabled people. Sometimes it’s disabled people themselves struggling to make sense of their own experiences. Either way, these disability clichés tend to end up impeding rather than improving communication and understanding.
We need more discussion about disability issues, not less. And we need as many people as possible to join in. But before diving in without reflection, it’s a good idea to ask whether what we have to say is true, valuable, and called for.
Union Pacific to Pay $260K to Settle Disability Discrimination Lawsuit
Union Pacific Railroad Co. will pay $260,000 and furnish other relief to settle a disability discrimination lawsuit in a case involving a former employee at Ogilvie Transportation Center in Chicago.
In the lawsuit, the Equal Employment Opportunity Commission (EEOC) alleged that Union Pacific unlawfully discriminated when it refused to allow an employee who once had a brain tumor to return to work as a custodian at the center, a position Union Pacific contended was “safety-critical.”
EEOC’s suit contended that Union Pacific failed to conduct an appropriate individualized assessment to determine whether the employee could safely perform the essential functions of the job. Such alleged conduct violates the Americans with Disabilities Act (ADA). Union Pacific agreed to settle the lawsuit before filing an answer to the EEOC’s complaint. It denies the allegations.
Under a two-year consent decree, agreed to by the parties and entered by the court, Union Pacific will pay $260,000 to the former employee. Union Pacific has also agreed to train a set of its Chicago service unit employees on the ADA’s protections and, for the term of the decree, to report to EEOC all future complaints of disability discrimination and denials of requests to return to work after a medical leave of absence.
The EEOC filed suit in the U.S. District Court for the Northern District of Illinois in Chicago (EEOC v. Union Pacific Railroad Co., Civil Action No. 19-cv-6021) in September 2019, after first attempting to reach a voluntary settlement through the EEOC’s pre-lawsuit conciliation process.
How Free Accessibility Plugins Create Fresh Problems for Small Business
As inclusivity becomes a more important topic in the public eye, web accessibility has become a serious issue for small and medium businesses. Successive court rulings have underlined that web accessibility is no longer optional for businesses of every size.
Problems with Free Accessibility Plugins
A 2018 statement by the Department of Justice confirmed that ADA requirements to make your business accessible to customers with disabilities applies to your internet presence as well as your physical stores. Recent headlines about the Supreme Court ruling against Domino’s Pizza for running an app that can’t be used by blind pizza-lovers only underlined the importance of this issue.
Web accessibility should concern every small business owner
Web accessibility isn’t just for the big fish to worry about. Disability activists, tired of waiting for companies to comply with web accessibility guidelines like WCAG 2.0, are increasingly sending lawyer demand letters and initiating lawsuits against small businesses that have an online store or simple web presence that doesn’t comply with ADA title III requirements for web accessibility.
ADA title III accessibility lawsuits against small businesses rose 181% in 2018, costing an average of $20,000 to settle out of court, and a great deal more to complete court proceedings. It can begin with a frustrated blind shopper who can’t buy a pair of shoes because the shoe store site doesn’t support their screen reader, or an elderly customer trying to order groceries online who can’t understand how to complete their purchase because of the confusing layout of the site. Difficulties like these leave SMB websites open to lawsuits.
On top of that, SMB sites that aren’t accessible hemorrhage customers who are eager to hand over their money. 61 million Americans live with a disability of some sort, but they still want to shop online, just like everyone else. It’s estimated that working-age people with disabilities have a discretionary income of $21 billion, which is more than the Hispanic and African-American markets put together.
A recent study of accessibility websites discovered that a massive 98% of them fail to meet WCAG 2.0 requirements. It might give the impression that SMB owners don’t care, but that’s rarely the case. Small businesses want to provide services for their customers and abide by the law, but web accessibility requirements are murky and confusing.