“whether the issue is the truth or falsity of the employer’s reason for its action, or the co-existence of legitimate and illegitimate motives, whether the plaintiff puts on direct or circumstantial evidence, or both, the issue at the liability stage is simply whether the plaintiff has shown, by a preponderance of the evidence, that discrimination was a motivating factor in the employment decision.” (Drachsler, 2005, p.230)
The Civil Rights Act of 1991, further extended these provisions and consolidated the list of prohibitions. But the application of Disparate Treatment theory to any given case is never straight-forward, for management decisions are based upon so many factors, with prejudice and discrimination (if any) often playing out in subtle and indirect ways. Judge Magnuson elaborated on 1991 amendments thus:
“Absent from the statute is the requirement that discrimination be a “substantial” factor, a “but-for” factor, or the necessary and sufficient cause of the employment decision. Instead, Congress unambiguously required that discrimination be “a” motivating factor in the employment decision. Any analytical paradigm that requires greater proof to prevail on liability contradicts the express language of the statute.” (Drachsler, 2005, p.230)
Another aspect of HRM that falls within the purview of Hiring and Recruitment is the Employee Referral program. There are both advantages and disadvantages in using an employee referral campaign (ERC) for recruiting staff members. A clear advantage is that a new candidate is brought to the notice of the management by an incumbent employee. And if the reputation of the incumbent worker is impressive, it can then be taken as a rough guideline of the candidate’s likely proficiency. In this case, a certain degree of security is created through personal association between the established and the prospective employees. Another advantage of employee referral campaigns is that they help promote the brand value of a company through word-of-mouth publicity. In order for an existing employee to bring his contacts into the company, he/she must first have a positive perception about the status and worthiness of the company. On the flip side, a poor response to an employee referral campaign can usually indicate an unmotivated workforce perceiving no incentive either for themselves or for their contacts in availing job opportunities with the company. One other obvious advantage of an ERC is that it cuts down recruitment related expenditure by eliminating the need for advertising, job fairs, hiring agencies, etc. In certain domains, highly specialized positions are best filled through personal channels and not through traditional recruitment processes, making a case for ERCs.
On the negative side, employee referral campaigns can also create conflict-of-interest scenarios for the management, when they make an assessment that is inconsistent with that of the referring employee’s. For example, a candidate being recommended by an employee could be estimated to be either unsuitable or unqualified for the vacant position. In such a case, the management usually ends up causing disappointment for both parties by declining to hire. More importantly, it’s relationship with the currently employed worker might take a negative turn. Even if the candidate is found to be suitable and sufficiently qualified for the role, there is no way that the referring employee could be held liable for the performance and conduct of the candidate upon employment. We should also remember that an employee makes a referral for the monetary incentive and it is unlikely that he/she would either have the inclination or time to exercise discretion in the choices.