Document Type

Article

Publication Title

University of Pennsylvania Law Review

Publication Date

2016

Page Number

49

Keywords

employment discrimination, hiring, ambiguity aversion

Disciplines

Labor and Employment Law | Law | Sexuality and the Law

Abstract

To avoid the appearance of sex discrimination that would violate Title VII of the Civil Rights Act, both Equal Employment Opportunity Commission (EEOC) guidance and 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 conduct an original experimental study fielded on more than 3,000 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 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.

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