The new EEOC Compliance Manual issued on April 19, 2006 updates guidance on Title VII of the Civil Rights Act of 1964. The manual warns that recruiting only at select colleges or relying only on word-of-mouth recruiting may generate applicant pools that do not reflect diversity in the labor market.

The list of "best practices" in the new manual recommends that employers eliminate word-of-mouth recruiting in non-diverse workplaces. Documentation related to the applicant pool will be extremely important under the new guidelines. Gayla Crain, managing partner at Epstein Becker Green Wickliff & Hall advises employers to ensure that at least 20% of the applicants produced through their referral programs are minorities and that at least 20% are female for predominantly male positions or male for predominantly female positions. Employers can use resources like job boards, community resources, or recruiting firms to help them to balance out their pool.

Campus recruiting is another area that can be potentially discriminatory. Title VII may be violated if significant racial disparity results form recruiting from predominantly white or predominantly black schools. The manual states that companies are responsible for making sure that the applicant pool reflects the composition of the qualified labor force. Any distinction that a company makes regarding the percentage of graduates it will recruit from any given school must be linked to legitimate business reasons in advance, such as SAT scores. Employers must verify all educational requirements for any position. The EEOC will also scrutinize any other factors used to screen out applicants including years of experience, English-language skills, arrest records, and bankruptcy and credit issues. Employers also need to store resumes for two years.

Companies that do business with the Federal Government face additional concerns. Federal contractors are subject to Office of Federal Contract Compliance Programs audits of affirmative action plans plus compliance checks and reviews.

When an employer decides to use an outside vendor to help them to fill an open position and a charge of discrimination is raised, the EEOC looks at the party that made the decision that led to the claim. For example, if the vendor decides not to send a candidate to a client and that candidate claims discrimination, the responsibility rests with the vendor. If the vendor sends five candidates and the client interviews and hires one, the client is responsible for charges raised by the disappointed candidates.

A more complex claim can occur when the client's instructions to the search firm are neutral but the execution may lead to disparate impact. For example, height and weight cannot be used as screening requirements but the ability to lift a certain number of pounds with a certain frequency can.

Employers can avoid discrimination claims by supplying a diverse group of candidates to their hiring managers. Companies also need to follow specific steps:

1. Have a documented hiring process that explains how every job is filled, including the process for reviewing resumes and the methodology selected for generating interview questions.

2. Train people in the process.

3. Conduct annual or biannual audits for the hiring process. Select a recently filled position and review how it was filled.

Following these steps ensures that all applicants are treated equitably and fairly and will help an HR department to be prepared for any EEOC investigation.