Workplace Strategies Watercooler 2026: Defensible Decisions—Lawful Hiring in the EEOC Enforcement Era

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Scott Kelly: Hey, everyone. Thanks for joining. This is Scott Kelly. We’re coming to you. I’m here with Nonnie Shivers, who’s a shareholder in our Phoenix office and office managing shareholder there and chairs our diversity, equity and inclusion compliance practice group. We are coming to you from workplace strategies in Austin, Texas. And this is the watercooler edition of Defensible Decisions. Nonnie and I just ended a presentation at one of our breakout sessions dealing with hiring and recruiting practices and what’s lawful about them, how to do them now, and how you can get your best talent. And we talked about a lot of things related to the enforcement environment right now, how things have been changing in the last 16 to 18 months. But we went through a couple of different hypotheticals that we are hoping to share with you today because we hope that there’s some great practical takeaways there. Nonnie, do you want to get us started on some of the more interesting points from our presentation today?

Nonnie Shivers: Yeah, thanks, Scott. Great to be here. So, where we’re going to start is with a recruiting scenario that a lot of employers are asking about in the current enforcement environment. Then we’re going to move on to a hiring scenario drawn from a real case that was recently decided that was fraught with some risk and might have some type of moments for you. It’s been a long year and a half. It feels like it’s probably been 10 years, and the enforcement environment continues to be, shall we put it, robust? And that’s especially true as to hiring and recruiting.

One of the questions Scott and I have received consistently over the past year and a half has been, can we still target outreach and recruitment to diverse institutions and diverse individuals? I’m not a huge fan of lawyers who say it depends and it doesn’t depend here. The answer here is yes, but you need to ensure that your opportunities are broad based.

Now we also had Andrea Lucas, the chair of the EEOC here at Workplace Strategies, and we’re going to drill down on those concepts, but I want to start and not bury the lead, which is she’s been asked these questions recently and she has very clearly said that as long as the goal is equal employment opportunity compliance and involves a broad array of outreach, looking to and broadening recruitment to underrepresented groups is lawful. Of course, the devil’s in the details. So, hiring managers have to know there’s no fast track and you can never use a protected characteristic to give preference or even as a plus factor. That’s not new. That’s been the law. So, broadening it is fine, but turning it into some type of action that’s based on protected characteristic, such as making it a clear path that if you have that characteristic, you will automatically be interviewed. That’s a challenge.

The second answer that Chair Lucas provided recently here at Workplace Strategies and at another conference was whether you could attend career fairs or recruiting events at HBCUs. Now we’re just using that as an example. This would go to HSIs, women’s colleges or other institutions where underrepresented people may be more prevalent or be the focus of the population. Now to cut to the chase, Chair Lucas there again said it’s acceptable to go to career fairs or do recruitment at HBCUs as part of an overall strategy, but there can’t be a race motivated path or a gender motivated path. And so, I think what Scott and I want to emphasize on this example is that the devil is in the details. You can do it, but there are different levels of permissibility here as to how you do it in your broader strategy. So it has to be a comprehensive strategy that doesn’t get you to preference, doesn’t apply different standards, doesn’t use demographic targets and selection and certainly doesn’t devolve into quotas in any way, shape or form.

Anything that looks or sounds like a quota, even if it’s simply targeting demographic outcomes or listing demographics is going to be a problem. Scott, what do you have to add to that? I mean, we’ve heard from Chair Lucas on it. It may give employers some confidence, but are there any best practices, practicalities that you think would help people stay on the right side of the law, or at least how the law is being interpreted?

Scott Kelly: Well, I think one, in trying to look at something like from an authority standpoint, there is an executive order and if you’ve listened to Nonnie and I in any presentations we’ve given, we’ve been very clear that executive orders are not laws. They’re policy statements from an administration, but there is an executive order from 2025 dealing with really the federal government or this administration’s support of HBCUs. So, I think that’s a good place to look. And I feel like documentation around things related to what your recruitment strategies are, the fact that you’re not only recruiting from a distinct race or ethnicity-based group, the fact that you’re doing that broad based recruiting is important. I was telling somebody after our session, a client came up and was asking a question and I said that for the majority of my career, I’ve always told employers that less is more. You don’t need to document necessarily every different thing.

Of course, be very careful in your documentation. But I feel like in this moment, one of the things that employers that really should consider is whether or not they need to make sure that they are in fact kind of documenting the obvious. So, if they are going to be reaching out to HBCUs, if they’re going to be reaching out to other types of diversity-based recruitment platforms or referral sources, they need to ensure that they’re documenting that and that they’re doing…what’s the reason, what’s the why behind that? And I think for most cases, the why is they’re looking for qualified talent to really make their pool full of more qualified talent to then help ensure that there’s equal opportunity as they’re going through the recruitment process and then moving it into the selection process.

Along with that, I think you need to make sure that your decision makers, whether you’re training your recruiting team or you’re training your actual hiring managers, that just because someone is coming from some of these organizations that are being supported by your organization does not necessarily mean that there is an inference or an implication that you need to give them any type of preference. I think that’s where I’m talking about having more documentation, keeping those training records, keeping any advice that you’re giving if you’re giving a presentation to your recruiting or talent acquisition team, consider the documentation of that because I think that’ll go a long way if you’re faced with any type of enforcement or inquiries from the EEOC or frankly from anyone about your recruiting practices.

Nonnie Shivers: So true. And I think that audit, even if you don’t have the funds or the ability to do a full-bore privileged assessment, I do think auditing those internal communications, job ads and documentation for problematic language, is really going to be a tool in the toolkit that will help avoid risk. Absolutely the case. So then the other thing we thought we’d talk about in addition to some data analytics, which are always important and we heard from Chair Lucas today you should be doing them, which we absolutely have been recommending as well for clients, but also as a consideration for all employers is what are we seeing in terms of recent case law? And we’re going to tee up a case study perhaps on the actual hiring front. And so what does the current enforcement look like, Scott, and what we can learn from some unfortunate events that evolved for one particular employer?

Scott Kelly: Yeah. So, one of the case studies we spent some time with our panel today was from a city of Philadelphia, a recent matter. And the city of Philadelphia had a policy where it was for… I believe it was for its police force. It was called the rule of two. They were choosing the two top highest scores for particular promotions or particular roles. Those two top scores were selected for the role. And so, what they decided to do, the city council and relying upon an executive order entered by the mayor of Philadelphia had decided to extend that to a rule of five. And instead of making it the top five scores, there were other attributes that could be part of the decision making related to performance and other issues. And we had some white male police officers file suit. The union got involved. There’s a lot of messy facts in all of it and there’s a lot because it’s a public employer, there were a lot of public records related to different things.

As I was reading the case, it really started to dawn on me about, hey, if there would’ve been a little bit more legal advice particularly couched and kind of under the attorney-client privilege that maybe the city of Philadelphia wouldn’t have found itself with the bad result that it did. And so, part of it is certainly, I think if you could do some analysis of your selection decisions under privilege, to me, that’s paramount, that’s important. As Nonnie mentioned, Chair Lucas pretty much said that to do it for the purposes of monitoring your legal risk was lawful and important to do, or at least that was my takeaway. I think that that again would be something really important to do and we’re going to spend some more time talking about that in a second, but I do think everything that Nonnie just recommended to consider if it’s right for your organization, looking at your job ads.

I mean, she and I just spent a long time this week, longer than you would’ve thought on kind of a complicated question about EEO taglines and what would be appropriate and what’s not appropriate in a job ad. And I still review things that have some aspects in them, some certain language in them that I think could be a little bit risky in this landscape. Not unlawful by any means, but I just think make sure that you are putting the job requirements in these job ads, in these job descriptions, because that is what you are going to be held accountable to.

And so making sure that those are there and that they’re narrowly tailored to the particular role is I think of paramount importance. Also, if you are having communications with different people within HR or talent acquisition talking about the reasons that you’re going to maybe change a practice, you really need to dial into the reasons of why and document those, but you might want to check with legal counsel before you engage in that and ask them for legal advice that would help provide some privilege on some of the decision making that you’re involving yourselves with.
And there might be, I would say, less risky ways to do things or you might get some advice that while it might be laudable that you were doing things like the city of Philadelphia’s statement said, “We’re going to do this to better reflect the community that we’re serving.” I’m paraphrasing a bit, laudable goal, but not necessarily a lawful reason at all to change your hiring criteria that would get you in quite a lot of trouble. Nonnie, what other things are you seeing from that case that you think we should be talking about?

Nonnie Shivers: Yeah, two things that I would take away, which is documentation at all level matters. And so, it’s really shoulder taps, it’s showing why you’re selecting someone and why you’re not selecting others and you want that documentation. The EEOC has made it a point to state that it is not necessarily following in its investigation. The statutes of limitations may apply so this 300 days may not limit what you’re going to get. It’s six years in their book. And so, you want to keep in mind that it’s the document trail, but also the document retention of these decisions and your ability to know who, what, where, when, and why. I am a big fan of giving people model documents. So, when I do investigations training, for instance, one of the services I provide to clients of the firm, I provide those I train with sample notes. What are you expecting from people? What will actually evidence legitimate non-discriminatory reason and that pretext did not exist?

The other thing I just reiterate, and if you’ve listened to me or Scott on our presentations or our podcast is anything that looks sounds or smells like a quota and anything that looks sounds or someone’s like a preference is still going to be an issue. But what this City of Philadelphia case really brought home was tethering performance measures, your pay, your promotability, your evaluation score, feedback you receive. When you tie that to demographic outcomes, that is evidence of preference in every enforcement agency’s eyes and likely is going to be potentially risky. Now, whether or not you can withstand liability and that falls within your risk preference is a different issue, but keep a keen eye on quotas and preferences. All right. I guess one of the questions I have, Scott, is I leave this, which is there were probably analyses that could have been done to get to the root cause of what are we looking for?

What are the barriers? And you talked about privilege briefly. There’s privilege issues, but there’s also key areas to assess in hiring and in selection. Is there anything that to bring this home you would say we should look at, especially using the city as an example, what might have been caught, how other employers could create tests for their documentation gaps?

Scott Kelly: Absolutely. So, I think that you need to look at all…I mean, there’s not a one size fits all. First, I think you really need to understand what your selection process entails, what the different steps of it happened to be. And you are certainly able and possibly should test each one of those steps to ensure that there is not a statistical problem. Important takeaway here, just if you do have a statistical problem, it does not mean you’ve engaged in discrimination, but I think it’s important to then do a little bit of research to understand why that might have happened. If there are legitimate non-discriminatory reasons for the things that happened, then you’re probably done. If not, you might need to dive in a little deeper. So, you could look at the review of the applications that might happen. You could look at actual resume screens.

Once you get a pool of candidates that you feel like might meet initial qualifications or minimum qualifications, then at some point people are going to probably proceed to an interview. So, understanding what goes on in that interview stage and assessing that under privilege would be good. Then you could look at people that were made offers because not everyone that you offer a job to is actually going to become your employee. They might take a different role. They might stay where they are. But if you’ve made that offer of employment and that might have an impact on the overall selection and so there might not be an issue. If you’re looking at all things and if you’re only looking at offers, there might be an issue. Similarly, it could be a vice versa situation to where you realize that your offers are causing a problem. And then you certainly should look at overall who was an applicant and who was selected.

Now all of that was a lot, right? I mean, I’m not necessarily suggesting that that would be appropriate in all stages. Typically, when I work with employers, what they would look at is their whole selection process, the number of those applicants and there’s different ways of defining that, but the number of applicants compared to the number of hires to see if there’s a selection disparity there. And if so, then you can investigate that or you could maybe break it into some of these chunks, these different stages that we’re talking about. So, there’s plenty of ways to devise and design these analytics to test, to see if you have barriers to test what your legal risks are. In this case, we’re not advocating for you making a change in your decision making. So, we’re not saying that, “Oh, this process has an issue against men. Therefore, we are going to go in and offer jobs to women to get rid of that issue.” That’s not what this would be designed to do.
That would be unlawful because you would be considering somebody’s protected characteristic.

Instead, we’re looking to see, do your processes create some kind of problem? Is it the hours that are required for working that might be screening out certain people? Is it an education requirement that’s really not necessarily tied to the actual performance of the role that are screening out certain people? Or do you see that under the same decision maker, whether it’s a recruiter or a hiring manager, that consistently they’re screening out certain demographics of individuals? Then maybe that means that you need to talk to that person, provide some training, understand what’s going on there and get to the bottom of it. All of that is really looking at getting rid of or eliminating or reducing your barriers. So, lots of fun to unpack there and we’ll continue talking about this on future episodes of Defensible Decisions. We really appreciate you joining us. And Nonnie, thanks for joining me here today.

Nonnie Shivers: You’re welcome. Great to have you, Scott.

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