Letters October 2008

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Video R?sum?s

Dear Editor:

I?ve enjoyed my subscription to The Network Journal and the articles therein.? I write to specifically address the feature ?Video R?sum?s,? June 2008. As a senior appellate litigation attorney for the Equal Employment Opportunity Commission and point person for the agency?s new national initiative called E-RACE (Eradicating Racism and Colorism from Employment), I was a little disturbed by the reported response of Brian Kruger, president of CollegeGrad.com, to employer concerns about discrimination charges arising from the use of video r?sum?s.? According to the article, Kruger said: ?There is no bigger risk to discriminate in a video versus a live interview.?

This is far from true. Hiring discrimination often is very difficult to prove because job applicants are rarely informed of the reason(s) they were not hired and do not know whether the selection decision was based on an illegal criterion.? The risk of discrimination occurring with respect to video r?sum?s is greater than a live interview because the applicant has no contact with the employer or the person reviewing their video r?sum?.? During a live interview, an applicant at least can observe the interviewer?s reactions, tone and body language in assessing whether the process was fair or illegally biased.

The drawbacks and concerns regarding video r?sum?s are legitimate. The EEOC recognizes that video r?sum?s are a 21st-century job search and marketing tool and that no federal law explicitly forbids them. However, video r?sum?s can open the door to subjectivity and implicit biases, which can lead to employment discrimination. Title VII of the Civil Rights Act of 1964 prohibits employment decisions that are motivated or influenced by a person?s race, color, national origin, gender or religion. The Age Discrimination in Employment Act forbids discrimination based on age. The Americans with Disabilities Act prohibits discrimination based on a person?s actual, perceived or record of, disability.

Video r?sum?s can reveal a person?s protected traits such as race, color, national origin, gender and age.? Further, unlike a paper r?sum?, videos can also disclose an applicant?s disability (e.g., speech impediment, blindness), and possibly religion if one wore a Christian cross, Star of David, or Muslim hijab. Employment decisions based on any of these protected traits are against the law.

Employers who require video r?sum?s in lieu of paper r?sum?s, even if they don?t rely on a person?s protected traits in the selection process, could also be in violation of the law.? Such practice could exclude persons who are not technologically savvy and those who do not have access to computers, video cams or webcams.

Because studies on the digital divide have shown that certain racial or ethnic groups and older persons do not have access to or use computers, such practice could disproportionately and unlawfully exclude those racial groups and older workers from the employment process.? Moreover, the use of videos in the application process may violate state laws (e.g., California, Kansas, Hawaii) that forbid employers from requesting pictures or any submission that would reveal the race, color, sex, ancestry, national origin, religion or age of the job applicants.

At bottom, discrimination during the hiring process, whether such discrimination occurs at the live interview or in the employer?s use of a video r?sum?, is ILLEGAL.? To avoid potential discrimination charges or lawsuits, employers who use video r?sum?s should make certain they create objective criteria of qualifications and experience for the job at issue and that they rely on this criteria evenhandedly in making their selection decisions.

To remove any barriers to the employment process and bolster neutrality, employers using video r?sum?s also should request paper or online r?sum?s, and reserve viewing the video r?sum?s after undertaking an initial screening that focuses solely on the person?s qualifications and experience as derived from the paper r?sum?.? Jobseekers using video r?sum?s, in contrast, should focus on satisfying the application requirements of the employer.

If it is an option, they should always provide a paper or online r?sum?. If they submit a video r?sum?, they should be sure that it effectively promotes their qualifications, experience and credentials to establish their suitability for the job.

Paula R. Bruner, Esq.
Sr. Appellate Attorney
Equal Employment Opportunity Commission
Office of General Counsel –
Appellate Services
Washington, D.C.?