Inclusion-Conscious Talent Acquisition: Laws And Values

5 steps to consider in your D&I policy

Fostering a diverse, inclusive environment starts before an employee shows up (or logs on!) for their first day of work. Acquiring talent with diverse backgrounds requires deliberate introspection, attention to unconscious biases that affect decisions, and understanding applicants’ legal rights.  

Laws in the United States and elsewhere prohibit discrimination for reasons such as race, color, national origin, religion, sex, gender, gender identity, and sexual orientation.  Many statutes worldwide require equal pay for equal work—a gender or racial pay gap may reflect a wage / hour violation. Companies with U.S. federal government contracts must comply with additional equal employment opportunity requirements, including an affirmative action plan and certain reporting.

With this background, vet each phase of the process, identifying opportunities to highlight inclusion and ensure legal compliance—consider the five steps below.

Talent who values D&I will find out the real deal about an employer, and if a company cannot walk the talk, self-congratulatory branding won’t fool them. Employers seeking to hire their way out of a toxic culture are unlikely to succeed—and candidates may be skeptical of benefits that look good on paper (such as family-friendly policies) but that actual employees rarely utilize. 

Recruiting outsiders into the fold may first require an honest assessment of the current climate, and concrete steps toward improving from within. In the past several years, many jurisdictions have enacted or strengthened laws prohibiting sexual harassment and bullying, such as Japan’s 2020 Power Harassment law and China’s new Civil Code.

Laws restrict information employers can elicit from job candidates—for example, some U.S. state laws prohibit inquiring about criminal history (often referred to as “ban-the-box” laws) and/or salary history. Data privacy legislation such as the European General Data Protection Regulation requires that any information employers collect be related to the job. Even without a legal prohibition, both the questions on an application and the way they are posed will signal to candidates whether their individual contributions will be understood and appreciated.  

Job descriptions may exclude talented applications, or contain off-putting wording or phrasing. For example, is the ideal candidate described in a manner that evokes traditional gender roles? Do the education requirements exclude excellent talent on the basis of financial privilege? In drafting job descriptions, avoid describing duties in a way that may deter differently-abled applicants who could perform them with a reasonable accommodation (as is required by the Americans with Disabilities Act and laws in many other countries—some countries even impose additional taxes on employers without a certain percentage of differently-abled workers).  

A well-drafted application and requisition cannot recruit talent who cannot find it. The U.S. Equal Opportunity Employment Commission—responsible for investigating and enforcing federal antidiscrimination laws— recommends that employers focus on the posting mechanism to ensure the right pool of applicants. If the job posting targets only certain candidates based on a protected category status, the recruiting strategy could create evidence of discrimination—but this should not intimidate employers from ensuring that underrepresented minorities are aware of the role and presenting it in a way that encourages those from all backgrounds to apply. 

Consider whether employees with privilege are more likely to see the post, whether the post is easy to find with a web search, and whether the application is convenient and easy to fill out—perhaps even on a mobile device.

Even absent overt discriminatory intent, biases are more likely to control decision makers who are oblivious to them. Front and center on a candidate’s application is a name; increasingly a photo is also available on the résumé or through professional networking sites. But names and appearances can skew a reviewer’s impression in favor of a more privileged candidate, particularly one that reminds them of themselves.  Further, if shared background (alma mater, hometown, family, hobbies) is absent or not readily apparent, interviewers can unwittingly sabotage interviewees, asking questions differently and exhibiting discomfort that the interviewee then mirrors. 

Technology may exacerbate this problem, as it may be even more difficult to uncover common ground to break the ice. Employers can consider strategies like redacting names / photos from initial screenings to avoid bias in screening, and using a backstop like a commitment to considering at least one underrepresented minority candidate and one female candidate for a position, referred to the “Rooney Rule.” The Rooney Rule is not a prohibited “quota”—rather, it antidiscrimination laws by ensuring that employers choose from among qualified candidates of multiple backgrounds.

At a time when everyone is suffering intensely, we observe glimmers of hope that the world may finally perceive the devastating, often tragic, burdens that certain groups carry, far beyond what those with more privilege must bear.  An inclusive and diverse workplace is essential to dismantling unjust power structures—in seeking new talent with focused attention on laws underlying that goal and the barriers that make it challenging, employers hold themselves accountable and embrace their pivotal role in this moment.