Is Applying for “No Specific Job” or “Steering” Illegal

Is Applying for “No Specific Job” or “Steering” Illegal?

by Steven Smith

Two recent court cases have brought this question up in many Human Resource circles across the country. While the court cases do not deal directly with the general application itself, the implications of these rulings are important to consider if you allow applicants at your organization to apply for no job in particular.

General Application – Defined

You may be using this type of application right now at your current workplace. The concept is very simple: you basically allow applicants to fill out an application for no job in particular. Once the applicant applies, your Human Resource team decides which position they would be the best fit for, and assigns them to be considered for that role. There seems to be nothing inherently wrong with this practice, but there is a reason why many employers now are no longer accepting applications unless the applicant is applying for a specific job.

Disparate Impact vs. Disparate Treatment

According to SHRM on their website, by definition:

“Disparate impact refers to policies, practices, rules, or other systems that appear to be neutral, but result in a disproportionate impact on protected groups. Disparate treatment is intentional. For example, testing a particular skill of African Americans only is disparate treatment. Testing all applicants and getting results from that test that eliminate African Americans disproportionately is disparate impact.

Title VII prohibits intentional discrimination based on race, color, religion, sex, or national origin and prohibits both “disparate treatment” and “disparate impact” discrimination.

In cases of disparate treatment, employees or applicants must show that intentional discriminatory practices took place. In response, an employer must show a legitimate reason for the practice.”

Racial Steering and Gender Steering

Based on this definition and explanation, in 2014 we saw the introduction of a concept called “steering”. Steering stems from the old cowboy days where you would steer the cattle into their designated area that had been fenced off in order to keep the bovines from wandering or escaping.

The concept of steering is not bad, as long as it does not have a disparate impact on any of the protected classes under Title VII.

While applicable to other areas (such as housing), steering can now be applied to the hiring process and opportunities for employment advancement and internal hiring.

Case #1: K Services Co.

The final ruling for this case occurred on Nov 4th, 2013. The services provided that were reviewed in this case involved laundering services that included “light duty” jobs and “heavy duty” jobs. The heavy-duty jobs paid more than the light duty jobs, which in and of itself was not a problem. The problem presented itself in the compliance evaluation where the OFCCP discovered that it was common practice to assign the light duty jobs to the female workers that were hired as general laborers, and the heavy-duty jobs were assigned to the male workers. As a result, 59 women workers were not getting an equal opportunity to work the heavy-duty positions because they were female. Instead they were “steered” into the lighter duty roles. At the same time, a disparate impact occurred with 331 male workers because they were ONLY considered for the heavy-duty roles, and not necessarily for other roles they would have qualified for.

Self-monitoring measures were put in place to ensure that hiring and pay practices were not discriminatory, and “steering” employees into certain positions was in violation of Executive Order 11246.

Case #2: Hillshire Brands Co.

Keeping it simple, this case had a final ruling on September 18th, 2014. In essence, the OFCCP found that there was a disparate impact in the hiring process where 2,474 men were discriminated against. There were two jobs involved here: A Dumper/Stacker and a Biscuit Assembler. During the 20-month review period, applicants were “steered” into one of these two positions. The outcome was that 98% of the applicants selected for the Biscuit Assembler role were female, and 99% of the applicants selected for the Dumper/Stacker role were male. Since there were less Stacker/Dumper roles open, there was a significant hiring disparity. The OFCCP Director even stated that:

“Stereotypes about ‘women’s work’ and ‘men’s work’ become harmful when they stand between qualified workers and good job opportunities.”

Ultimately Hillshire was forced to review and revise its selection process and provide better training to their hiring managers to eliminate this practice of “gender steering” which resulted in a stereotype that is illegal.

No Specific Job – Good idea or bad idea?

Ultimately you need to answer this question yourself. Every situation is unique, and the concept of steering is not bad, as long as it does not have a disparate impact on any of the protected classes under Title VII. The OFCCP has recently started working more closely with the Department of Labor in enforcing this concept of steering. If you as an employer are allowing applicants to submit an application that is not tied to a specific role, you need do your own self-monitoring and maybe ask some of the following questions:

  • Are we steering applicants into certain roles?
  • Is there evidence of a disparate impact in those we have hired compared to those that have applied?
  • Are my managers steering applicants in a way that results in discrimination?
  • Have I trained my hiring managers efficiently in order to ensure that my own company does not run into a “steering” problem?

To help you with answering these questions, ApplicantPro had an EEO Hiring Compliance webinar back in July of 2015 that can help you understand best practices as it relates to hiring and the use of your applications.

View this short 30-minute webinar here:
EEOC – Best Practices for Being Compliant in your Hiring Process


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