A Recruiter’s Dilemma: Addressing Discriminatory Practices

As the head of recruitment, when Louise learned that a hiring manager decided not to progress with a candidate due to their neurodiversity, she knew immediate action was essential. Louise scheduled a private meeting with the hiring manager to understand their reasoning and address any misconceptions or biases. She then provided information on the benefits of neurodiversity in the workplace and highlighted the legal and ethical implications of such discrimination. Louise reminded the manager of InfoCare’s DEI policies and legal obligations, urging them to reassess the candidate based on their skills and potential contributions.

It was crucial to ensure the recruitment process complied with anti-discrimination laws and upheld InfoCare’s ethical standards. Louise considered the impact on InfoCare’s organizational reputation and the importance of addressing unconscious biases. Reflecting on the candidate's experience, Louise aimed to provide a fair and respectful process.

Following up with the candidate, Louise transparently communicated the status of their application and, if appropriate, offered a sincere apology. Louise assured the candidate of InfoCare’s commitment to fair hiring practices and outlined any next steps, such as a reassessment or additional interview rounds. Constructive feedback focused on their qualifications, and Louise asked about any necessary accommodations for future interviews.

To prevent future issues and recurrences, Louise implemented mandatory training on neurodiversity and inclusive hiring, reinforced InfoCare’s DEI policies, created diverse hiring panels, and promoted inclusive recruitment practices. Louise also established feedback mechanisms to continuously improve InfoCare’s process. By taking these steps, Louise aimed to address the immediate issue, support the candidate, and foster a more inclusive and equitable recruitment process.

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Disclaimer: This story above is a work of fiction. Any resemblance to actual persons, living or dead, or actual events is purely coincidental. The characters, events, and incidents portrayed are entirely fictitious and created for illustrative purposes only. The company "InfoCare" and its policies are also fictional and do not represent any real organization. The narrative is designed to highlight best practices in recruitment and the importance of diversity, equity, and inclusion in the workplace.

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The recruiter’s dilemma

Now the story above isn’t pleasant reading. Nor is it true. Going back to my earlier post about Anton, he never received such a response. Now, that said – it doesn’t mean that others should go through what he had experienced – be it discrimination for neurodiversity, race, gender, disability, LGBTIQ, age, military veteran or just about anything.

And this brings us to today’s article on what recruitment leaders need to do if they are up against discriminatory behaviour. Unfortunately, most of them sweep such behaviour under the rug for the following reasons:

·?????? fear of conflict

·?????? protecting the organization's reputation

·?????? lacking awareness of the severity and impact of discrimination

·?????? feel pressured to meet hiring targets quickly

·?????? prioritize maintaining workplace harmony

·?????? believe addressing such issues could lead to legal complications or backlash

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Ultimately, failing to address discrimination undermines the organization's commitment to diversity, equity, and inclusion and can lead to long-term negative consequences for both the company and its employees.

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Now, going back to the case study above - responding to a hiring manager's decision not to progress with a candidate based on their neurodiversity requires a thoughtful and structured approach from the head of recruitment. Here’s how one should respond, the considerations to keep in mind, and how to follow up with the candidate:

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Response to the Hiring Manager

1. Immediate Discussion: Schedule a private and immediate discussion with the hiring manager to understand their reasoning and address any misconceptions or biases.
2. Education and Awareness: Provide the hiring manager with information on neurodiversity, its benefits in the workplace, and the legal and ethical implications of discrimination.
3. Policy Reminder: Remind the hiring manager of the organization’s DEI policies and legal obligations regarding non-discrimination.
4. Reassessment: Encourage the hiring manager to reassess the candidate based on their skills, qualifications, and potential contributions to the team, rather than their neurodiversity.

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Considerations

1. Legal Compliance: Ensure that the recruitment process complies with all relevant anti-discrimination laws and regulations. Neurodiversity is often protected under disability discrimination laws (read section on discrimination & law below)
2. Ethical Standards: Uphold the organization’s commitment to ethical practices and DEI principles.
3. Organizational Reputation: Consider the impact of discriminatory practices on the organization’s reputation and its ability to attract diverse talent.
4. Bias Awareness: Address and mitigate unconscious biases in the hiring process through training and education.
5. Candidate’s Experience: Reflect on the candidate’s experience with the organization and strive to provide a fair and respectful recruitment process.

Follow-Up with the Candidate

1. Transparency and Communication: Reach out to the candidate to provide an update on the status of their application. Be honest about the internal review process while maintaining professionalism and confidentiality regarding the hiring manager’s actions.
2. Apology and Assurance: If appropriate, offer a sincere apology for any distress caused and assure the candidate that the organization is committed to fair and inclusive hiring practices.
3. Next Steps: Inform the candidate of any next steps, such as a reassessment of their application or additional interview rounds. If the decision has been reversed, communicate this clearly and promptly.
4. Feedback: Provide constructive feedback on their application and interview, focusing on their skills and qualifications rather than their neurodiversity.
5. Support and Accommodations: Ask if the candidate requires any accommodations for future interview rounds and ensure these are provided to create an inclusive environment.

Steps to Prevent Future Issues

1. Training Programs: Implement mandatory training for all hiring managers and HR personnel on neurodiversity, unconscious bias, and inclusive hiring practices.
2. Policy Enforcement: Review and reinforce the organization’s DEI policies, ensuring they are effectively communicated and enforced across all departments.
3. Diverse Hiring Panels: Create diverse hiring panels to minimize biases and ensure fair assessment of all candidates.
4. Inclusive Practices: Develop and promote inclusive recruitment practices, such as offering alternative interview formats, providing clear job descriptions, and focusing on skills-based assessments.
5. Feedback Mechanisms: Establish mechanisms for candidates and employees to provide feedback on the recruitment process and report any concerns regarding discrimination or bias.

By taking these steps, you can address the immediate issue, support the candidate, and implement long-term strategies to foster a more inclusive and equitable recruitment process.

Summary

In summary, Louise’s response to discriminatory behaviour in the hiring process highlights the importance of immediate and thoughtful action. By educating the hiring manager, reinforcing DEI policies, and ensuring legal compliance, Louise aimed to foster a fair and respectful recruitment process. Her steps to support the candidate and implement long-term strategies, such as training programs and inclusive practices, underscore the need for commitment to diversity, equity, and inclusion. Addressing discriminatory behaviour not only protects the organization’s reputation but also ensures a positive and inclusive experience for all candidates.

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Further reading: Discrimination & law in Australia/NSW

In Australia, and specifically in New South Wales (NSW), the decision not to progress with a candidate based on their neurodiversity breaks several key anti-discrimination laws. These laws are designed to protect individuals from discrimination in employment based on disability, which includes neurodiversity. The relevant laws include:

1. Disability Discrimination Act 1992 (Cth)

Key Provisions:

• Section 15: Prohibits discrimination against a person on the grounds of their disability in various areas of public life, including employment.
• Section 5: Defines discrimination as treating someone less favorably because of their disability.
• Section 6: Covers indirect discrimination, where a condition or requirement is imposed that is unreasonable and that a person with a disability cannot comply with.

Implications:

• Discriminating against a candidate because they are neurodiverse is considered direct discrimination under this Act.
• The organization may face legal consequences if found to have breached this Act.

2. Fair Work Act 2009 (Cth)

Key Provisions:

• Section 351: Prohibits adverse action against an employee or prospective employee because of their disability, among other protected attributes.
• Adverse Action: Includes dismissing an employee, not hiring a prospective employee, or discriminating against them in terms of employment conditions.

Implications:

• The decision not to progress with a neurodiverse candidate constitutes adverse action based on disability and is prohibited under this Act.

3. Anti-Discrimination Act 1977 (NSW)

Key Provisions:

• Section 49B: Makes it unlawful to discriminate against a person on the grounds of disability in various contexts, including employment.
• Disability: Defined broadly to include physical, intellectual, psychiatric, sensory, and neurological disabilities.

Implications:

• Discriminating against a candidate due to neurodiversity is a violation of this state legislation.
• Individuals can lodge complaints with the Anti-Discrimination Board of NSW, which can investigate and take action.

Remedies and Enforcement

Complaints and Legal Action:

• Australian Human Rights Commission (AHRC): Individuals can lodge complaints regarding discrimination under the Disability Discrimination Act 1992.
• Fair Work Commission: Handles claims related to adverse action under the Fair Work Act 2009.
• Anti-Discrimination Board of NSW: Individuals can lodge complaints under the Anti-Discrimination Act 1977.

Potential Consequences:

• Damages and Compensation: Organizations found in breach of these laws may be required to pay compensation to the affected individual.
• Penalties: Regulatory bodies may impose fines or other penalties on the organization.
• Reputational Damage: Legal action and findings of discrimination can harm the organization's reputation.

Footnote

The decision not to progress with a candidate based on neurodiversity is a violation of several key anti-discrimination laws in Australia and NSW, including the Disability Discrimination Act 1992, the Fair Work Act 2009, and the Anti-Discrimination Act 1977. These laws collectively protect individuals from discrimination based on disability, and organizations must ensure their hiring practices comply with these legal requirements to avoid legal consequences and promote a fair, inclusive workplace.