An International Perspective on Employment Discrimination
The US has a long and varied history oflegislation and case law that addresses discrimination in selection processes. This has led to considerable detail in the regulations and oversight created to combat discrimination. However, some have referred to the US as an outlier in these laws and practices compared to the rest of the international community (Dunleavy, Cohen, Aamodt & Schaeffer, 2008). In fact, the legal environment is seen as having a substantial impact on employee selection practices in only a few other countries (e.g., Canada and South Africa; Sackett et al., 2010). In particular, the US and other countries differ in terms of who is considered a member of a protected group, the use of legislation for promoting preferential treatment and the enforcement of the laws. We therefore present a briefoverview ofsome ofthe key trends in how other countries approach anti-discrimination legislation for selection practices.
To date, Sackett and colleagues (2010) have provided the most comprehensive review of the legal context in other countries. They demonstrate that most countries have some form of law or directive that explicitly prohibits discrimination, though these may be no more than general statements against discrimination and do not specifically address selection processes. Despite enacted legislation, there is a dearth of concrete guidelines on how to establish that discrimination has occurred and what kind of evidence is required to support a discrimination charge. Very few cases outside the US challenging the adverse impact or discriminatory nature of formal tests exist and therefore most countries rarely rely on validity evidence to refute discrimination. In fact, most countries do not even require evidence of validity (Sackett et al., 2010). In many places, the empirical validity of assessment instruments is implicitly assumed. To address a discrimination claim, organizations typically offer qualitative evidence of job-relatedness or bona fide occupational requirement. In any event, punishment following an adverse ruling can be rather light (Sackett et al., 2010).
While there is consistency in condemning discrimination, the groups that are protected differ greatly across countries. Often the protected groups of a nation are directly tied to its history and frequently address the disadvantages of indigenous people or immigrants (Sackett et al., 2010). For example, many EU member states have experienced an unbroken influx of migrants over the past several decades (e.g., Hanges & Feinberg, 2010; Laczko, 2001). In many of these countries, immigrants experience high unemployment rates and struggle to move beyond blue-collar positions (Myors et al., 2008b). Therefore, these countries need to address a much broader range of national and ethnic groups than legislation in the US does, increasing the complexity of case law and enforcement in those countries (Myors et al., 2008a).
Examples of disadvantaged groups include immigrants, First Nation people and Francophones in Canada; Indigenous Australians in Australia; Pacific peoples and Maori in New Zealand; Black people (who constitute a disadvantaged minority), mixed-race individuals and Indians in South Africa; Taiwanese aborigines in Taiwan; certain Hindu castes in India; and religious minorities and Kurds in Turkey.
In terms of specific protected classes, in the US these include race, sex, national/ethnic origin, colour, age, religion and disability. In addition to the classes, many countries include sexual orientation (e.g., France, Germany, South Africa), political opinion (e.g., New Zealand, Belgium, Israel), and marital or family status (e.g., Chile, Taiwan, the UK) (Sackett et al., 2010).
In their survey of 22 countries, Sackett and colleagues (2010) demonstrate that most of the countries they sampled afforded protections to 7-9 of these 10 categories. South Africa and New Zealand cover all 10, Canada covers all categories except religion and Kenya covers all categories except age, while Germany covers six of the categories but not colour, age, political opinion and family or marital status. In addition to some or all of the categories, many countries protect classes such as breastfeeding mothers, having an irrelevant criminal record and physical features (Australia), social status (Japan), lower castes (India), union membership (Chile), moral principles and genetic characteristics (France) and personal status and military service (Israel) (for a more complete list, see Sackett et al., 2010).
The US also differs from most other countries in its use of quotas and other preferential treatments. As set out in legislation, notably the Civil Rights Act of 1991, employers are not allowed to use quotas, within-group norming or separate cut scores for protected groups. However, there are numerous countries that not only promote preferential treatment but require it. Japan, France, Kenya and Korea have quotas for disabled employees, Taiwan requires a certain number of employees in an organization to be aborigines and South Africa promotes the use of racial quotas (Sackett et al., 2010). Beyond these practices, many countries have some form of preferential treatment, ranging from relaxing qualifying scores for protected groups to utilizing within-group cut-off scores (Sackett et al., 2010). Clearly, there is a fairly large divide between the use of preferential treatment in the US and other countries.
While many countries have passed legislation to protect people from discrimination, it is evident that without implementation its effectiveness is threatened. Even in the US the enforcement of selection legislation has been turbulent, with long periods of inactivity. However, some countries suffer difficulties in enforcing legislation due to the absence of case law and agencies like the EEOC to support their application. Praslova (2008) notes that while Russia has many protected classes, it lacks enforcement practices. This results in many recruitment advertisements not adhering to the country’s laws regarding selection and hiring practices. Compounding this is the fact that most Russians do not believe it is possible to prove discrimination and that the courts are more likely to side with the employers. Similarly, in Romania the implementation of laws related to selection are seen as problematic as employment decisions are frequently based on organizational directives rather than the law (Cozma & Woehr, 2008). This speaks to the importance of not evaluating the progress of a country on its legislation alone, but on its enforcement of the law too.
The differences in how countries treat protected groups, legislation covering preferential treatment and the enforcement of those laws are influenced by a multitude of factors. Dunleavy and colleagues (2008) proposed a model in which a country’s Zeitgeist, which includes its moral, intellectual and cultural climate, influences the legal protections, professional guidelines, enforcement and case law for selection procedures. Others have proposed that societal factors, such as cultural values (Hanges & Feinberg, 2010) and economic conditions (Myors et al., 2008a), may similarly influence a country’s legal atmosphere for selection. Due to the large variation in these factors, it is important to acknowledge that no one system of laws and practices will fit all countries perfectly. While the US is often used as a reference point in the selection literature, it is important to understand how some practices do not exist in other countries and may even be detrimental in those contexts. Similarly, we should be aware that other countries may apply standards that the US should still strive for when the introduction of new laws is being considered.
Adverse impact in the US and EU
Hanges and Feinberg (2010) note that despite the substantive differences between the US and other countries in many facets of discrimination, understandings of its of adverse impact in the EU and US are similar (though one needs to bear in mind that member states of the EU may differ from each other on discrimination issues). This includes construing adverse impact as involving negative consequences or outcomes for minority groups and the use of statistical data to establish a claim. As in the US, when adverse impact is found the burden of proof is borne by the defendant, who must then demonstrate that the practice in question is valid (Hanges & Feinberg, 2010).
Differences include the EU countries tending to cover more protected groups and not setting out specific rules or guidelines to assess adverse impact (e.g., the four-fifths rule or statistical procedures establishing adverse impact) (Hanges & Feinberg, 2010).