The Litigation Risks Of Preferential Hiring And Recruitment

Written exclusively for ChubbWorks

A California producer of Mexican-style frozen desserts agreed to settle a discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

The EEOC's lawsuit included allegations that the employer discouraged non-Hispanic individuals from applying for jobs and demonstrated partiality to Hispanic workers in its hiring process, excluding black, white, and Asian applicants. In addition, the EEOC alleges the employer terminated its only non-Hispanic driver due to his race and national origin.

Along with $200,000 in monetary relief, the employer agreed to undertake several measures to prevent future discrimination. The employer will revise its recruitment and hiring policies so as to facilitate a hiring process that is not based on race or national origin. They will also hire an outside EEO consultant, provide training for all employees, and make regular reports to the EEOC. "Helados La Tapatia to Pay $200,000 to Settle Suit with EEOC for Hispanic-Preference Hiring" (Apr. 12, 2021).

Commentary and Checklist

Title VII of the Civil Rights Act of 1964 prohibits employers from making hiring and other employment decisions based on protected classes such as race or national origin. The above article illustrates how favoring a particular race or ethnicity is essentially discriminating against all other ethnicities, and thus is a liability risk.

Keep in mind that an employer’s hiring practices, though not explicitly discriminatory, can evolve into illegal conduct, as the biases of managers and supervisors supersede established policies. Employers cannot assume that open practices are followed, but should regularly review recruiting, hiring, and promotion records to make sure no discriminatory trends exist.

The following suggestions can help lower the risk of discrimination in your hiring process:


  • Create objective job descriptions that focus on specific skills needed for the position.
  • Review existing hiring practices and eliminate any practice that is meant to include or eliminate a specific member of a protected category, including race and ethnicity.
  • Review job advertising procedures to ensure that job openings are marketed to the entire community.
  • Develop interview questions that do not involve information about race, ethnicity, or any other protected category.
  • Train supervisors and other hiring personnel on state and federal laws surrounding discrimination and provide them with instruction on interviewing skills.
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