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Are Sham Job Interviews Legal?

By Richard Dahl on February 24, 2022 2:33 PM

Former Miami Dolphins head coach Brian Flores says two NFL teams conducted "sham interviews" with him just to say they met a quota in talking to Black candidates for head coaching jobs.

That allegation is part of a class-action lawsuit in which he says the NFL and three teams engaged in racist hiring practices. He says the alleged sham interviews that he experienced twice are a demonstration of it. Other Black coaches also say the practice is common.

Despite the 2002 creation of the Rooney Rule, which aspired to increase the number of Black coaches in the league by requiring that teams interview Black candidates, there is currently one Black head coach in a league where 70% of the players are Black.

The EEOC and Employment Discrimination

As we wait for this lawsuit to play out, maybe it's a good time to take a closer look at sham interviews themselves. Are they common in other businesses? And are they legal?

Clearly, it's illegal for employers to discriminate based on race. Federal law prohibits employers from discriminating against applicants or employees based on race, color, religion, sex (including gender identity and sexual orientation), national origin, age, disability, or genetic information.

The Equal Employment Opportunity Commission (EEOC) says that employers should not request information that discloses or tends to disclose an applicant's race unless it has a legitimate business need for that information.

At the same time, however, the EEOC says that employers may want that information "for affirmative action purposes." These employers can collect the necessary information but must also guard against discriminatory selection by using "tear-off sheets" that are separated from application forms and not used in the actual hiring process, the EEOC says.

So what does the law say about interviewing people of color with no intention of hiring them? Nothing, really. The EEOC provides a list of "best practices" for avoiding race and color discrimination in recruitment and hiring and guidance on potentially discriminatory questions that interviewers should avoid, but the agency appears to be silent on the question of sham interviews.

Rooney Rules and Corporate Diversity

Despite the Rooney Rule's questionable performance in the NFL, it has caught on in much of corporate America. In 2015, President Barack Obama held up the Rooney Rule as an example when he called for tech companies to increase diversity. Since then, tech giants Amazon, Facebook, and Uber have adopted it.

The version of the Rooney Rule adopted by these corporations requires the consideration of at least one woman and one underrepresented minority candidate in the slate of candidates for either every open position or every open senior position (the details vary from company to company).

Has it worked?

Numerous studies show that diverse workplaces outperform those that are more homogeneous. In 2019, McKinsey & Co. found that the companies in the top quartile of ethnic diversity financially outperformed those in the bottom quartile by 36%. But the real-world evidence of how those rules have worked out is spotty.

Exhibit A is the NFL. The Rooney Rule resulted in increased hiring of Black coaches in the first few years of its implementation. Between its 2003 inception and 2006, the number of Black coaches rose from 6% to 22%. But as Flores points out in his lawsuit, the numbers have since declined. Today, there is one Black head coach, four Black offensive coordinators, and 11 Black defensive coordinators in a 32-team league.

In 2016, a large study conducted by the University of Colorado's Leeds School of Business concluded that Rooney Rules have not had much of an impact in corporate hiring.

Civil-rights attorney Cyrus Mehri, who played an integral role in creating the NFL's Rooney Rule, recently weighed in on how the Rooney Rule has worked out in corporate America with some criticism. "Several major companies such as Facebook have established weak or symbolic versions of the Rooney Rule, like having a diverse pool of applicants while saying nothing about the finalists," he said. "Don't be fooled by what some companies say — if it's not a finalist interview slate, it's not likely to move the needle."

Checking Boxes is Not Enough

The key takeaway on Rooney Rules, according to Mehri and others, is that employers must take them more seriously.

For instance, the University of Colorado study found that when only one person of color was in the candidate pool, the chances that they would be hired was zero, but when there were two or more candidates it meant that a person of color was 190 times more likely to be hired.

Last year, the executive search company The Bowdoin Group looked at Rooney Rules and identified a possible flaw in the reasoning behind their implementations: "One might argue that the Rooney Rule turns diversity into an obligation rather than a core value. Companies can interview just one diverse candidate, check the Rooney Rule box, and consider their efforts complete."

"It's so easy to game that system," Nicole Sanchez, who advises companies on diversity and inclusion, told USA Today. "How it works often is someone goes, 'Great. I talked to a Black guy, we're done.' The question ends up becoming how sincere was that effort."

The question ends up becoming whether that effort was a sham. And the evidence suggests that too often the answer is yes.

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