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Who Discriminates in Hiring? A New Study Can Tell.

Applications seemingly from Black candidates got fewer replies than those evidently from white candidates. The method could point to specific companies.

By Eduardo Porter

Twenty years ago, Kalisha White performed an experiment. A Marquette University graduate who is Black, she suspected that her application for a job as executive team leader at a Target in Wisconsin was being ignored because of her race. So she sent in another one, with a name (Sarah Brucker) more likely to make the candidate appear white.

Though the fake résumé was not quite as accomplished as Ms. White’s, the alter ego scored an interview. Target ultimately paid over half a million dollars to settle a class-action lawsuit brought by the Equal Employment Opportunity Commission on behalf of Ms. White and a handful of other Black job applicants.

Now a variation on her strategy could help expose racial discrimination in employment across the corporate landscape.

Economists at the University of California, Berkeley, and the University of Chicago this week unveiled a vast discrimination audit of some of the largest U.S. companies. Starting in late 2019, they sent 83,000 fake job applications for entry-level positions at 108 companies — most of them in the top 100 of the Fortune 500 list, and some of their subsidiaries.

Their insights can provide valuable evidence about violations of Black workers’ civil rights.

The researchers — Patrick Kline and Christopher Walters of Berkeley and Evan K. Rose of Chicago — are not ready to reveal the names of companies on their list. But they plan to, once they expose the data to more statistical tests. Labor lawyers, the E.E.O.C. and maybe the companies themselves could do a lot with this information. (Dr. Kline said they had briefed the U.S. Labor Department on the general findings.)

In the study, applicants’ characteristics — like age, sexual orientation, or work and school experience — varied at random. Names, however, were chosen purposefully to ensure applications came in pairs: one with a more distinctive white name — Jake or Molly, say — and the other with a similar background but a more distinctive Black name, like DeShawn or Imani.

What the researchers found would probably not surprise Ms. White: On average, applications from candidates with a “Black name” get fewer callbacks than similar applications bearing a “white name.”

This aligns with a paper published by two economists from the University of Chicago a couple of years after Ms. White’s tussle with Target: Respondents to help-wanted ads in Boston and Chicago had much better luck if their name was Emily or Greg than if it was Lakisha or Jamal. (Marianne Bertrand, one of the authors, testified as an expert witness in the trial over Ms. White’s discrimination claim.)

This experimental approach with paired applications, some economists argue, offers a closer representation of racial discrimination in the work force than studies that seek to relate employment and wage gaps to other characteristics — such as educational attainment and skill — and treat discrimination as a residual, or what’s left after other differences are accounted for.

The Berkeley and Chicago researchers found that discrimination isn’t uniform across the corporate landscape. Some companies discriminate little, responding similarly to applications by Molly and Latifa. Others show a measurable bias.

All told, for every 1,000 applications received, the researchers found, white candidates got about 250 responses, compared with about 230 for Black candidates. But among one-fifth of companies, the average gap grew to 50 callbacks. Even allowing that some patterns of discrimination could be random, rather than the result of racism, they concluded that 23 companies from their selection were “very likely to be engaged in systemic discrimination against Black applicants.”

There are 13 companies in automotive retailing and services in the Fortune 500 list. Five are among the 10 most discriminatory companies on the researchers’ list. Of the companies very likely to discriminate based on race, according to the findings, eight are federal contractors, which are bound by particularly stringent anti-discrimination rules and could lose their government contracts as a consequence.

“Discriminatory behavior is clustered in particular firms,” the researchers wrote. “The identity of many of these firms can be deduced with high confidence.”

The researchers also identified some overall patterns. For starters, discriminating companies tend to be less profitable, a finding consistent with the proposition by Gary Becker, who first studied discrimination in the workplace in the 1950s, that it is costly for firms to discriminate against productive workers.

The study found no strong link between discrimination and geography: Applications for jobs in the South fared no worse than anywhere else. Retailers and restaurants and bars discriminate more than average. And employers with more centralized personnel operations handling job applications tend to discriminate less, suggesting that uniform rules and procedures across a company can help reduce racial biases.

An early precedent for the paper published this week is a 1978 study that sent pairs of fake applications with similar qualifications but different photos, showing a white or a Black applicant. Interestingly, that study found some evidence of “reverse” discrimination against white applicants.

More fake-résumé studies have followed in recent years. One found that recent Black college graduates get fewer callbacks from potential employers than white candidates with identical resumes. Another found that prospective employers treat Black graduates from elite universities about the same as white graduates of less selective institutions.

One study reported that when employers in New York and New Jersey were barred from asking about job candidates’ criminal records , callbacks to Black candidates dropped significantly, relative to white job seekers, suggesting employers assumed Black candidates were more likely to have a record.

What makes the new research valuable is that it shows regulators, courts and labor lawyers how large-scale auditing of hiring practices offers a method to monitor and police bias. “Our findings demonstrate that it is possible to identify individual firms responsible for a substantial share of racial discrimination while maintaining a tight limit on the expected number of false positives encountered,” the researchers wrote.

Individual companies might even use the findings to reform their hiring practices.

Dr. Kline of Berkeley said Jenny R. Yang, a former chief commissioner of the E.E.O.C. and the current director of the Office of Federal Contract Compliance Programs, which has jurisdiction over federal contractors, had been apprised of the findings and had expressed interest in the researchers’ technique. (A representative of the agency declined to comment or to make Ms. Yang available.)

Similar tests have been performed since the 1980s to detect discrimination in housing by real estate agents and rental property owners. Tests in which white and nonwhite people inquire about the availability of housing suggest discrimination remains rampant.

Deploying this approach in the labor market has proved a bit tougher. Last year, the New York City Commission on Human Rights performed tests to detect employment discrimination — whether by race, gender, age or any other protected class — at 2,356 shops. Still, “employment is always harder than housing,” said Sapna Raj, deputy commissioner of the law enforcement bureau at the agency, which enforces anti-discrimination regulations.

“This could give us a deeper understanding,” Ms. Raj said of the study by the Berkeley and Chicago researchers. “What we would do is evaluate the information and look proactively at ways to address it.”

The commission, she noted, could not take action based on the kind of statistics in the new study on their own. “There are so many things you have to look at before you can determine that it is discrimination,” she argued. Still, she suggested, statistical analysis could alert her to which employers it makes sense to look at.

And that could ultimately convince corporations that discrimination is costly. “This is actionable evidence of illegal behavior by huge firms,” Dr. Walters of Berkeley said on Twitter in connection with the study’s release. “Modern statistical methods have the potential to help detect and redress civil rights violations.”

Eduardo Porter joined The Times in 2004 from The Wall Street Journal. He has reported about economics and other matters from Mexico City, Tokyo, London and São Paulo.   More about Eduardo Porter

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EEOC v. Abercrombie & Fitch Stores, Inc.

Closed Expands Expression

• Key details

Key Details

• Mode of Expression Non-verbal Expression
• Date of Decision June 1, 2015
• Outcome Remanded for Decision in Accordance with Ruling, Monetary Damages / Fines
• Case Number 135 S.Ct. 2028
• Region & Country United States, North America
• Judicial Body Supreme (court of final appeal)
• Type of Law Civil Law, Constitutional Law
• Themes Religious Freedom
• Tags Discrimination

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Case Analysis

Case summary and outcome.

After Abercrombie & Fitch did not hire Samantha Elauf because her religious headscarf violated the company’s dress code, the Equal Employment Opportunity Commission sued Abercrombie. The Supreme Court of the United States rejected Abercrombie’s arguments that it had not violated Title VII of the Civil Rights Act because Elauf had not shown Abercrombie’s “actual knowledge” of her need for accommodation, as the need for an accommodation need only be a motivating factor in an employer’s decision.

Abercrombie & Fitch Stores, Inc. (Abercrombie), a retail clothing company, did not hire prospective employee Samantha Elauf, a practicing Muslim who wears a headscarf known as a hijab. Her headscarf, as well as other “caps,” violated Abercrombie’s “Look Policy” governing employee dress.

On Elauf’s behalf, the Equal Employment Opportunity Commission (EEOC) brought a claim that Abercrombie violated Title VII of the Civil Rights Act of 1964. The District Court found in favor of the EEOC, awarding Elauf damages. The Tenth Circuit Court later reversed by granting Abercrombie summary judgment, holding that liability for failure to accommodate only attaches after the prospective employee request accommodation from the employer.

Decision Overview

Under Title VII of the Civil Rights Act of 1964, an employer cannot decline to hire a prospective employee in an attempt to avoid accommodating the prospective employee’s religious practice, assuming the employer could accommodate without undue hardship. In this case, the Supreme Court of the United States considered whether Title VII’s limitation on employers is only triggered when the prospective employee has notified the employer of the need for accommodation.

Abercrombie argued that a prospective employee must show the employer’s “actual knowledge” of the need for accommodation before arguing there was disparate treatment. The Court rejected this argument, instead saying that the prospective employee need only show that the employer’s hiring decision was motivated by the need for accommodation. “The disparate-treatment provision forbids employers to: (1) ‘fail … to hire’ an applicant (2) ‘because of’ (3) ‘such individual’s … religion’ (which includes his religious practice).”[1]

Because both parties concede that Elauf wore her headscarf as part of her “religious practice,” the Court only needed to evaluate if Abercrombie had failed to hire her “because of” this practice. The Court noted that Title VII does not have a knowledge requirement, unlike other antidiscrimination statutes. Instead, certain motives are prohibited irrespective of the employer’s knowledge.

Abercrombie argued that parties must raise failure to accommodate claims as disparate-impact, rather than disparate-treatment. The Court rejected this argument because Title VII defines “religion” to include both belief and practice. Thus, religious practices are protected and must be accommodated. Abercrombie also argued that neutral polices cannot qualify as “intentional discrimination.” However, as the Court pointed out, Title VII bestows upon employers an affirmative obligation to accommodate and not to refuse or fail to hire an employee because of his or her religious practice, rather than “mere neutrality with regard to religious practices.” Therefore, in an 8-1 decision, the Court reversed the Tenth Circuit’s grant of summary judgment, and remanded the case for a judgment in accord with its ruling.

[1]-slip op. at 4.

Decision Direction

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

The Supreme Courts decision expanded religious expression because it affirmed that a victim of discrimination need not show actual knowledge of the need for a religious accommodation. An applicant must only show that his or her need for an accommodation was a motivating factor in the employer’s decision not to hire the prospective employee, not that the employer actually knew of his or her need. This requires employers to accommodate all religions under Title VII of the Civil Rights Act of 1964.

Global Perspective

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence.

Tit. VII, codified at § 2000e.

• U.S., Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013)

Case Significance

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

United States Supreme Court cases are binding precedent upon all lower courts in the U.S.

Official Case Documents

Official case documents:.

• Supreme Court Opinion http://www.supremecourt.gov/opinions/14pdf/14-86_p86b.pdf

Amicus Briefs and Other Legal Authorities

• Amicus and Party Briefs on SCOTUSblog Docket http://www.scotusblog.com/case-files/cases/equal-employment-opportunity-commission-v-abercrombie-fitch-stores-inc/

Reports, Analysis, and News Articles:

• Simran Jeet Singh, A Muslim woman beat Abercrombie & Fitch, Wash. Post (June 1, 2015) http://www.washingtonpost.com/news/acts-of-faith/wp/2015/06/01/a-muslim-woman-beat-abercrombie-fitch-why-her-supreme-court-victory-is-a-win-for-all-americans/
• Ariane de Vogue, SCOTUS rules in favor of Muslim woman in suit against Abercrombie and Fitch, CNN (June 1, 2015) http://www.cnn.com/2015/06/01/politics/supreme-court-abercrombie-fitch-headscarf/
• Marianne Levine, Supreme Court rules against Abercrombie in hijab case, Politico (June 1, 2015) http://www.politico.com/story/2015/06/ambercrombie-fitch-hijab-case-supreme-court-ruling-118492.html
• Dave Jamieson, Supreme Court Rules Against Abercrombie & Fitch In Discrimination Case, Huffington Post (June 1, 2015) http://www.huffingtonpost.com/2015/06/01/supreme-court-abercrombie_n_7464534.html

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U.S. Government Accountability Office

Higher Education: Employment Discrimination Case Referrals Between Education and the Equal Employment Opportunity Commission Could Be Improved

Despite recent increases in Black and Hispanic employees on higher education faculties, they're still underrepresented.

Current or prospective higher education faculty can file complaints of employment discrimination with the Equal Employment Opportunity Commission. They also file complaints with the Department of Education—which refers almost all of them to EEOC.

About 90% of Education's referrals to EEOC are required to be sent within 30 days, but have been late on average for more than a decade

EEOC can't confirm it received all of Education's referrals

Our recommendations address these issues.

What GAO Found

The proportions of Black or African American (Black) and Hispanic or Latino (Hispanic) college faculty increased from fiscal years 2003 through 2021. Yet, there were lower proportions of Black and Hispanic college faculty compared to Black and Hispanic workers with advanced degrees (e.g., master's and doctorate) and professional workers (e.g., lawyers and engineers), according to GAO's analysis of Department of Education and Census Bureau data. Black and Hispanic individuals were also less represented among college faculty than among students, according to GAO's analysis of Education data. For example, in fiscal year 2021, 8 percent of faculty were Black compared to 12 percent of students, and 7 percent of faculty were Hispanic compared to 19 percent of students.

College Faculty and Students by Race and Ethnicity, Fiscal Year 2021

Notes: Black refers to Black or African American. Hispanic refers to Hispanic or Latino. An individual who self-identifies as Hispanic only, or both Hispanic and any race category, would be classified as Hispanic. The Other category includes individuals such as those that identified as Native American, Pacific Islander, multiple races, or unknown race.

GAO's literature search identified strategies used by colleges to recruit and retain a diverse faculty, given the potential benefits to their students. Colleges have enhanced their job search processes, developed mentoring programs, and improved campus climate to recruit and retain a diverse faculty.

Education refers certain employment discrimination complaints against colleges to the Equal Employment Opportunity Commission (EEOC) for investigation consideration but has been consistently late in doing so. In fiscal year 2022, Education processed and referred to EEOC 99 complaints alleging employment discrimination at colleges based on race, color, national origin, or sex. GAO found that Education referred the complaints in 71 days on average, although Education policy calls for doing so in 30 days. However, Education does not track the timing of these referrals. Without doing so, Education could miss an opportunity to learn from offices that are more timely than others and apply those lessons agency-wide to reduce delays. Individuals with delayed complaints may experience adverse effects, such as continued discrimination or less pay. In fiscal year 2021, EEOC processed 1,342 complaints alleging employment discrimination at colleges based on race, color, religion, sex, national origin, or disability, some of which were referred by Education. However, EEOC does not have a protocol to consistently track and account for the complaint referrals. Recently, one such referral was not initially received by EEOC until the individual who filed the complaint followed up. Without a protocol to ensure that EEOC receives and processes all Education complaint referrals, some may be missed or resolution may be delayed.

Why GAO Did This Study

While the U.S. population has become increasingly diverse, college faculty may not reflect those same levels of diversity. Little is known at the national level about the relationship between faculty diversity and student outcomes. Separately, faculty have reported experiencing discrimination at colleges.

GAO was asked to review faculty diversity and employment discrimination at colleges. This report examines (1) selected aspects of diversity among faculty, (2) efforts by colleges to recruit and retain a diverse faculty, and (3) how Education and EEOC process employment discrimination complaints at colleges. GAO analyzed Education data on faculty and students from fiscal years 2003–2021, national workforce data from the Census Bureau and Bureau of Labor Statistics ranging from calendar years 2014–2021, Education complaint data from fiscal years 2011–2022, and EEOC complaint data from fiscal years 2011–2021 (each set was the most recent available). GAO also conducted literature reviews; reviewed relevant federal laws, regulations, and policies; and interviewed agency officials and selected higher education experts.

Recommendations

GAO is making two recommendations. One recommendation directs Education to track the timing of employment discrimination complaint referrals to EEOC. Education agreed. One recommendation directs EEOC to develop a protocol to ensure it receives and processes all complaint referrals from Education. EEOC neither agreed nor disagreed, but acknowledged the importance of processing all referrals, and is taking related action.

Recommendations for Executive Action

Full report, gao contacts.

Melissa Emrey-Arras Director [email protected] (617) 788-0534

Office of Public Affairs

Chuck Young Managing Director [email protected] (202) 512-4800

EEOC Settles First-of-Its-Kind AI Bias in Hiring Lawsuit (1)

By Annelise Gilbert

The US Equal Employment Opportunity Commission settled its first-ever AI discrimination in hiring lawsuit, reaching an agreement with a tutoring company that allegedly programmed its recruitment software to automatically reject older applicants.

iTutorGroup Inc. will pay $365,000 to a group of rejected job seekers age 40 and over, according to a consent decree filed Wednesday in the US District Court for the Eastern District of New York.

The settlement comes amid the EEOC’s broader push to target discrimination that can occur when employers rely on artificial intelligence and machine learning tools for hiring and other workplace decisions.

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AI use has skyrocketed in the past few years across business sectors, prompting calls for federal and state action in an area that has seen little regulation .

iTutor’s counsel Michael Sheppeard of Scarinci Hollenbeck LLC declined to comment on the settlement.

The commission said it typically doesn’t comment until after a judge has signed off on a consent decree, which is pending before Judge Pamela K. Chen .

Age Bias Claim

The agency sued three integrated companies providing English-language tutoring services to students in China under the “iTutorGroup” brand name in May 2022.

A rejected applicant only realized that they may have been discriminated against when they were offered an interview after resubmitting an identical application with a more recent birth date, according to the complaint .

The EEOC sought back pay and liquidated damages for the more than 200 applicants who were denied jobs in violation of the Age Discrimination in Employment Act, it said in a press statement. iTutor denied and continues to deny that it engaged in any wrongdoing.

Under the consent decree, iTutor is prohibited from rejecting tutor applicants based on sex. It also must adopt anti-discrimination policies and conduct antidiscrimination trainings. Further, the company must invite all applicants that were purportedly rejected due to their age in March and April 2020 to reapply.

The decree will remain in effect for five years from its effective date or three years from the resumption date, whichever is later. The date the court approves the decree will be the effective date, and the resumption date is the earliest date iTutor resumes soliciting or receiving tutor applications.

EEOC Enforcement

Roughly 79% of employers use AI for recruitment and hiring, according to a Society for Human Resource Management survey from February 2022.

Employers can use AI tools to screen resumes for desired qualities and experiences, but that can potentially lead to intentional or unintentional discrimination by rejecting applicants based on race, sex, age, or other characteristics protected by federal law.

In its draft strategic enforcement plan published in January, the EEOC took employers’ use of AI and machine learning tools into account for the first time and provided attorneys a road map for action.

Agency Chair Charlotte Burrows, last week reiterated the commission’s focus on AI as a “new civil rights frontier,” saying the new tools shouldn’t “erode basic values and principles.”

The biggest unknown is whether the commission will push to include automated tools in the decades-old Uniform Guidelines on Employee Selection Procedures, which determines if a test or a selection procedure used in hiring is in compliance with Title VII of the 1964 Civil Rights Act.

The agency is expected to ramp up its policy efforts now that it has a Democratic majority, which was realized with Commissioner Kalpana Kotagal’s swearing in Wednesday.

The case is EEOC v. iTutorGroup Inc. , E.D.N.Y., No. 22-cv-02565, joint stipulation filed 8/9/23.

To contact the reporter on this story: Annelise Gilbert at [email protected]

To contact the editors responsible for this story: Carmen Castro-Pagán at [email protected] ; Jay-Anne B. Casuga at [email protected]

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