George’s 15 minutes of fame — quoted in TIME Magazine on video resumes — with Friday video humor thrown in for good meaure
A few weeks ago, when I was in New York, I stayed at the Hudson Hotel, a cool place near the Time-Warner Building pictured at left (my photo). So did several other scintillating bloggers-blawgers.
Shortly after my return, I got an e-mail from a Time Magazine writer working in that very building, Lisa Takeuchi Cullen.
Lisa interviewed me on the subject of video resumes for this article:
Now, it was just a one-page article and my legal take on video resumes got only a brief mention. Although Lisa quoted me accurately and wrote a fine story, perhaps the legal theories of discrimination mentioned could stand to be spelled out a bit more thoroughly, which I’ll do now.
[If it's just the Friday humor you're after, click over to the rest of the post and scroll to the YouTube video at bottom. Really, be my guest . . . it's been a hard week . . .]
First, here’s the Time quote:
George Lenard, a St. Louis, Mo., employment lawyer, can envision a case centered on “disparate impact.” If an employer requires applications by video, then those without video cameras and broadband-equipped computers might argue they lacked access. Of course, he adds, the live interview process is hardly infallible. He cites a 2000 Princeton study that examined orchestras’penchant for hiring male musicians as an example of “disparate treatment.” When screens were put up–now a common practice in auditions–the gender skewing disappeared.
Now let’s talk for a minute about disparate treatment and disparate impact.
Definitionally, I can’t do better than the professor, Ross Runkel, in his Employment Law 101:
Disparate impact is the idea that some employer practices, as matter of statistics, have a greater impact on one group than on another. . . .
Federal legislation enacted in 1991 says that if the employees prove that a practice causes a disparate impact, then the employer must demonstrate that the practice “is job related for the position in question and consistent with business necessity.”
For a longer dissertation on disparate impact see my oldie-but-goodie:
Disparate impact law, Part I – where it all began (I never wrote any more parts).
Again from Professor Runkel:
Disparate treatment means the employee is claiming that the employer treated her differently than other employees who were in a similar situation. For example, both Jane and Paul skip work one day; the employer fires Jane but does not fire Paul. If the reason is because Jane is female, then this is disparate treatment because of sex which would violate Title VII. If the real reason is because Jane had a worse attendance record, then it could be disparate treatment because of differences in attendance, and therefore lawful.
That is a very simple explanation, and much more could be said about how discrimination is proven using the disparate treatment approach. But not today (whew . . .)
Applying These Legal Approaches to Video Resumes
Say an employer requires video– or perhaps merely relies on it substantially. If it can be proven that to a statistically significant extent this eliminates more employees in a protected category, such as racial minorities , this would be a case of disparate impact.
Digital Divide and Disparate Impact
Such a situation could well occur due to the “digital divide,” as a result of which minorities may have less access to video production, broadband, and necessary hardware and software, and may also lack the skills to create a good video resume.
The employer would be hard pressed to prove that the practice of using video resumes “is job related for the position in question and consistent with business necessity,” for most positions, given that it ran its business just fine for years without video resumes.
Too Much Information and Disparate Treatment
Turning to disparate treatment, my point is that with a video an employee claiming disparate treatment in the hiring process has evidence that the employer saw their appearance and thus knew their race, sex, age, etc., long before an interview.
In contrast, with a paper resume, these characteristics are unknown or may only be hinted at (name, length of employment history). Not knowing these facts can be a great defense if an applicant is rejected based solely on a resume, a defense that becomes unavailable with a video resume.
Thus, too much information, too soon, while perhaps helpful to some candidates, is legally problematic for employers.
The Musician Study
The musician audition scenario on which Lisa quoted me for Time actually has aspects of both disparate impact and disparate treatment.
The data showed that historically women and minorities fared relatively poorly in traditional auditions (statistical proof of disparate impact).
With instrumental ability being capable of evaluation without seeing the candidate, a non-blind audition was a classic example of a process with a disparate impact but no business necessity.
Additionally, an individual applicant who auditioned unsuccessfully under a non-blind procedure could try to make a case under the disparate treatment theory.
She would try to prove that she was better qualified than the man selected. The fact that her playing was judged with her gender so clearly known those making the selection would help her make her case.
Conversely, the orchestra would be deprived of the wonderful defense that it didn’t even know her gender and thus couldn’t have based the decision on that unlawful factor.
OK, enough legal theory. I’ve almost managed to confuse myself. (It doesn’t help that it’s after midnight and I’m dog-tired.)
My bottom line:
A trend towards using video resumes would take the hiring process in a direction 180 degrees from where it should be going.
Employers should be striving, like the orchestras, to make recruiting and hiring more objective and blind. They should be ceasing to rely on managers’ first impressions and gut feelings in free-form interviews, which so often prove to have been wrong or colored by unlawful bias (perhaps unconsciously).
The video resume push is on from people who want to capitalize on their ability to make a (quite possibly inaccurate) good first impression, especially after leaving all the flubs on the digital cutting room floor.
Employers should not fall for this stuff. It may help certain candidates, but it doesn’t help employers make sound, lawful decisions.
Now lets get on to the fun stuff.
Look at some video resumes yourself. Do they provide any useful information that would not be provided on a paper resume? Would it help an employer make an objective decision?
Start with the one that cracked everyone up when it was spread around YouTube, though it was intended entirely seriously. (Hey, come on, he doesn’t need anyone to hire him — the guy could start a business selling this as a motivational tape.)
Watch this one as an example of a homespun resume that adds nada that would not be on a cover letter or resume — just what he looks and sounds like:
Here’s a nicely-produced one that shows the candidate exhibiting job skills (as a golfer and golf pro instructing others):
Finally, the Friday comedy you’ve been waiting for (do not watch if you are offended by brief glimpses of bare breasts):