Job Hunting in Cyberspace—Diversity or Disaster?

Part 1: Video Resumes

EEOC Chair Naomi Earp cautioned attendees at a recent seminar in Hampton, Virginia that the agency’s E-RACE initiative, which focuses on eliminating race and color discrimination in the workplace, has recognized that some of the new technologies used in job searches may raise discrimination concerns. Earp specifically warned that employers that use video resumes may find themselves facing disparate impact claims because this otherwise neutral practice may disadvantage those applicants who do not have access to sophisticated videography equipment or broadband access. The EEOC anticipates that the disadvantaged applicants may be racial minorities, leading to discrimination claims under Title VII of the Civil Rights Act of 1964.

With a generation of applicants who are more comfortable with sending a text message than holding a pencil, what can employers expect to see from applicants? Video resumes and electronic interviews, such as video interviews and virtual interviews conducted with avatars pose special challenges for employers. This edition of the SC Diversity Council’s e-newsletter will discuss video resumes. Other electronic issues and their potential impact on employers seeking to create a diverse workplace will appear in future issues.

VIDEO RESUMES

Job seekers are increasingly using video resumes as a means of distinguishing themselves from their competitors. Video resumes are normally short video clips that allow individuals to describe their life and work experiences, display their personalities, and express their career interests to employers. Unlike paper resumes, video resumes do not typically share a common format. Instead, they allow job seekers to express their personalities in a manner intended to grab their potential employers’ attention.

“Trent Willis: Wrong for Unemployment:” For example, one popular video resume posted on YouTube by Trent Willis, a political consultant seeking a job on K Street in Washington, D.C., features a mock campaign attack ad that cleverly demonstrates Willis’s understanding of campaign tactics while also displaying his sense of humor. The resume begins with an ominous voice asking, “Do you really know Trent Willis?” The voice then continues, “Trent Willis attended the University of Alabama, where he studied public relations and where he legally drank.” The ad concludes with the sonorous voice declaring that Willis says that he is “willing to relocate and his salary would always be negotiable. And now Trent Willis wants your money. Trent Willis: Wrong for Unemployment.”

The Trent Willis video resume reveals some of the advantages that video resumes provide over paper resumes. First, Willis created a resume that demonstrated job-related skills because it was a mock ad itself, directly related to the job he was seeking. Second, Willis revealed a side to his personality and showed a sense of humor that could not be conveyed through a paper resume. Third, Willis’s video resume made him a more memorable candidate. Finally, because Trent Willis never appeared in the resume, the person reviewing the resume could not be influenced by Willis’ age, gender, or race.

The Trent Willis video did not present some of the more mundane statistical information that a traditional resume provides. To the extent a reviewing manager is comparing Willis’ qualifications with those of other candidates, the manager would not have as much information about Willis as presented in a paper resume.

Ease of Production: The use of video resumes has increased dramatically over recent years as platforms to post videos on the web, such as YouTube, have gained considerable popularity. The increase is also due to easily accessed and relatively cheap technology, computer programs, and web access that allow amateur videogrophers to cheaply and quickly film, edit, and distribute their video resumes. For example, a job seeker can simply film his resume with a web camera, edit it with a video editing software program, and download it onto the internet. Thousands of video resumes have now been posted on websites such as YouTube, Jobster, CareerBuilder, RecruiTV, WorkBlast, and MyPersonalBroadcast. Of course employers who “surf” for potential candidates’ video resumes where they do not have an open position will undermine their ability to say they only accept applications for open positions. Furthermore, federal contractors must retain records of the searches they use to retrieve video resumes, just as they must retain records of searches of other electronic application materials located in external database.

Job applicants may also direct employers to video resumes through e-mail or providing a web address where the resumes can be viewed. Employers can access these video resumes by accessing the websites and searching for relevant video resumes through search engines.

Possible Benefits to Employers: Employers may use video resumes to eliminate candidates at a earlier stage in the hiring process without an interview. An applicant who looks impressive on paper may fail to impress during an interview for various reasons, such as lack of presentation skills. Presentation skills may be especially relevant to some jobs, such as sales positions. Second, video resumes may allow employers to learn more about an applicant than the employer could learn through the paper resume alone. For example, a paper resume will provide a short description of the applicant’s work experience, but a video resume may provide more detail, or an actual visual depiction, of that experience. Also, the quality of the video resume may serve as an indicator of an applicant’s skill, creativity, competence, meticulousness, or other characteristics which often cannot be gleaned from a paper resume alone, particularly if the job at issue involves similar technology skills

Potential Employer Liability: Despite the benefits offered by video resumes, there are risks involved with incorporating consideration of video resumes into the hiring process. For example, reliance on video resumes presents the risk that decision-makers will take inappropriate and legally protected characteristics into consideration when deciding whether to interview a job applicant. Due to the visual nature of video resumes, they will often reveal information, such as an applicant’s race, age, ethnicity, religion, or disability, that is normally not apparent on a paper resume. If a hiring manager takes this information into consideration when granting or denying interviews to applicants, then the employer may face liability under employment discrimination laws. Although an applicant’s race, age, disability, or other protected characteristic will likely be revealed eventually during a personal interview, knowledge of this information obtained through a video resume before the interview stage can increase the number of applicant’s who can allege discrimination. This could eliminate an employer’s argument in defending a discrimination claim that it was not aware of the applicant’s protected characteristic based on the review of a paper resume. Employers may lose this defense if they view an applicant’s video resume, and they must find other support for their decision not to hire an applicant who is a member of a protected class.

Disparate Impact Claims—Race and Age: Employers considering the use of video resumes should be aware that using video resumes may create a disparate impact on certain groups of applicants. Disparate impact means that an employment practice disproportionately excludes certain demographic groups from receiving jobs, promotions, or other terms and conditions of employment. As most employers know, employment discrimination laws not only prevent intentional discrimination but also facially neutral employment practices that have a discriminatory impact on certain groups of employees and applicants. The EEOC has noted that video resumes may adversely impact racial minorities who have a more limited access to sophisticated videography equipment or broadband-equipped computers and older applicants who may not be as technologically savvy as some of the under-40 applicants.

The Lesson for Employers? It is important to train hiring officials on non-discriminatory hiring practices, as information indicating a person’s race, sex, religion, etc. can be found on both paper and video resumes. To lessen the likelihood that the consideration of a video resume may lead to allegations of discrimination, it is probably best to use video resumes as an optional supplement to and not as a replacement of paper resumes.

The author, Cheryl Behymer, is a Board Member with the S.C. Diversity Council. She is a partner with Fisher & Phillips LLP, a national law firm representing management in labor and employment issues. Behymer may be reached in the Columbia, SC office at 803.255.0000 or at cbehymer@laborlawyers.com.