Something to talk about: information exchange under employment law.

Author:Hersch, Joni
 
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To avoid the appearance of sex discrimination that would violate Title VII of the Civil Rights Act, Equal Employment Opportunity Commission (EEOC) guidance coupled with a common misunderstanding of the law have resulted in little or no information about family status being provided in pre-employment interviews. To investigate whether concealing family information actually improves women's employment prospects, we conducted an original experimental study fielded on more than 3000 subjects. Our study provides the first ever evidence that concealing personal information lowers female applicants' hiring prospects. Subjects overwhelmingly preferred to hire candidates who provided personal or family information, regardless of content--any explanation improved employment prospects relative to no explanation for an otherwise identical job candidate. Our results are consistent with the behavioral economics theory of ambiguity aversion, which finds that individuals prefer known risks over unknown risks. These findings have broader implications regarding permissible pre-employment questions, as they suggest that restrictions on questions about matters such as criminal history and credit history, both of which are currently targeted by legislatures and by the EEOC for prohibition, may likewise have adverse effects on the classes of workers such restrictions are intended to protect. Finally, our findings suggest that the interactive process model of reasonable accommodation, embodied in the enforcement guidance for the Americans with Disabilities Act, may provide a better model for accommodation of work--family balance.

INTRODUCTION I. INFORMATION RESTRICTIONS AT WORK: THE EXAMPLE OF STAY-AT-HOME MOTHERS II. THE ROAD TO IMPERMISSIBILITY FOR FAMILY-STATUS INQUIRIES III. CONSIDERING THE EFFECTS OF AMBIGUITY AVERSION IN THE WORKPLACE IV. EXPERIMENTAL FOUNDATIONS: EXAMINING HIRING PRACTICES AND THE SHORTCOMINGS OF OBSERVATIONAL DATA V. EXPERIMENTAL METHODOLOGY VI. EXPERIMENTAL RESULTS A. Testing Candidate Selection Within a Single Scenario B. Testing Candidate Selection Across Multiple Scenarios CONCLUSION INTRODUCTION

Title VII of the Civil Rights Act of 1964 prohibits explicit employment discrimination on the basis of sex, (1) but its efficacy in achieving gender equity in the workplace remains in doubt. (2) Following Title VII's passage, women made rapid progress in the workplace, (3) yet by the 1990s, progress began to stall, (4) and a seemingly intractable barrier to gender equity has remained: how to balance work and family. (5) In light of the undeniable reality that men and women do not have equal procreative or childrearing roles, (6) work-family balance is universally perceived as a constraint on employment for women, but not for men.? Mechanisms to achieve work-family balance, as a result, must take priority in any realization of workplace equality on the basis of sex. Laws intended to support work-family balance, such as the Pregnancy Discrimination Acts and the Family and Medical Leave Act, (9) have proven inadequate as a means of equalizing opportunity in the employment relationship. (10)

In the absence of any specific legislative guidance within the text of Title VII regarding how to equalize opportunity, Title VIPs sex discrimination provisions have spawned a series of information restrictions concerning the discussion of work-family matters. These restrictions largely derive from an overly broad reading--and, sometimes, a misreading--of Title VII case law by employers, employees, and even the Equal Employment Opportunity Commission (EEOC), the federal agency entrusted with enforcing the Act. To help employers navigate the issue of marital status inquiries during job interviews, the EEOC provides guidance such as the following:

Questions about marital status and number and ages of children are frequently used to discriminate against women and may violate Title VII if used to deny or limit employment opportunities. It is clearly discriminatory to ask such questions only of women and not men (or vice-versa). Even if asked of both men and women, such questions may be seen as evidence of intent to discriminate against, for example, women with children. (11) This language warns employers that pre-employment questions about marital status and the number and ages of children risk violation of Title VII. Undoubtedly, this guidance is well-intentioned and instituted in recognition that these factors may be used to discriminate against hiring married women with children. (12) However, law serves not only to establish order and protect rights, but also to promulgate norms. (13) Current interpretations of Title VII send the message that family life and work life are to remain separate. In contrast, consider many other topics that may naturally arise in the pre-employment setting--athletic pursuits, travel, and hobbies. (14) Discussion of such topics helps employers and applicants understand whether there is a fit with the workplace culture. (15)

Notably, although employers are prohibited from asking questions about marital status and children in a way that violates Title VII, applicants are in no way prohibited from volunteering such information. Yet, job candidates refrain from doing so. Indeed, it is so widely understood that pre-employment inquiries about family matters are prohibited that applicants may reasonably assume that they too are forbidden from volunteering such personal information and that doing so would undermine their employment prospects. Job applicants' fear of volunteering information about family matters is further compounded by the popular career advice that also discourages such volunteering. (16)

The processes by which job applicants reach an understanding that family matters are off limits in the workplace derive from two related sources. First, drawing on theories of the expressive value of law, the promulgation of such laws and EEOC guidance informs the public that such questions are discriminatory. A second source derives from the tendency of people to imitate others in deciding whether to obey the law, (17) often without knowledge of the actual legality of the imitated action by the party being imitated. (18) Our situation is conceptually similar in that job applicants and employees are not prohibited from discussing family matters, but the restriction on employers to ask about the topic sends a message that such conversations are off limits, and indeed prohibited, in the employment setting. The practical result of the workplace information restrictions on employers and employees--restrictions that hazily trace their roots to Title VII--is a widespread fear engendered in both employers and employees of discussing family matters in the workplace.

In this Article, we examine the consequences of these workplace information restrictions and argue that a new approach is needed to achieve workplace equity. Specifically, we present findings from an original experimental study designed to identify whether providing information about family matters, as opposed to concealing this information, influences hiring decisions. Our experimental design is based on the realistic and statistically valid observation that many women leave the workforce for family reasons, (19) yet wish to reenter the workforce after a period of time. (20) This exit-and-reentry situation provides a plausible framework, given the current legal environment, for examining the role of information about family matters in hiring decisions. Fielded on over 3000 subjects, our study provides evidence--perhaps the first of its kind--that workplace information restrictions may actually serve to stifle, rather than improve, workplace equity. More specifically, our study finds that otherwise identical applicants with a substantial gap in their work history who do not explain the personal family circumstances surrounding their job search are far less likely to be hired than those who do. Furthermore, the content of the reason provided for the job search does not matter; any explanation improves employment prospects relative to no explanation.

Though perhaps counterintuitive, in fact, behavioral economics theory predicts our findings. According to the behavioral tendency known as "ambiguity aversion" or the "Ellsberg Paradox," named after Daniel Ellsberg, the economist who first posited the theory, (21) individuals prefer known risks over unknown risks, for any given level of risk. (22) Although ambiguity aversion is regarded as a form of economically irrational behavior, it is a widespread behavioral phenomenon. (23) In the hiring context we examined, we found that subjects preferred to hire the candidate who provided information about family characteristics over the uncertain alternative who offered no such information. The experiment is structured so that the additional information provided is not informative as to the probability that the candidate will be productive; only the ambiguity of the employers' beliefs is affected.

Although the number of stay-at-home fathers has increased since the 2008 recession, the number still remains quite small compared to the number of stay-at-home mothers. (24) The burdens associated with childcare and home production still largely fall on women, as even today, only one in five fathers with preschool-aged children assume primary caregiving responsibility. (25) The result for employers is that, in contrast to the situation for women, little additional information is provided by discussing men's parental status, so the role of ambiguity with respect to family status is less of an issue when hiring men. (26)

Consequently, we argue that the EEOC guidance discouraging pre-employment questions about family matters has outlived its value--to the extent it ever provided value. Our argument stands in contrast to the positions of several employment discrimination scholars who have recently advocated for...

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