October 10 Tip of the Week

“No Good Deed …”

There is an old saying that “no good deed goes unpunished.”  Nowhere is this more applicable than to employers who seek to create and foster diverse and inclusive workforces.  The question that arises when attempting to even the playing field and provide equal opportunity to all is how to do that in such a way as to advantage one group without disadvantaging another group.  A recent case filed by the Equal Employment Opportunity Commission against Eli Lilly is one example of the difficult path employers must navigate when attempting to diversify their workforce. 

On September 1, 2021, a class action suit was filed against Eli Lilly and Company alleging age discrimination in their hiring practices for sales representatives.  According to the lawsuit, in 2017, Eli Lilly hired a new Chief Executive Officer who explicitly stated that he wanted to increase the number of millennials in Eli Lilly’s sales force.  According to the complaint, the CEO made this statement in a public town hall meeting, setting a target of increasing the representation of “millennials” and “early career professionals” to 40% of the company’s sales force.  Shortly after these statements were made, Eli Lilly changed its hiring practices and introduced various recruiting strategies that were designed to attract and hire sales representatives that were under the age of 40. 

As part of its attempt to meet this target, the complaint alleged that the company began to recruit sales representatives on college campuses and through college placement offices.  The company also established two programs that were designed to mentor and support younger sales representative and which did not include older, more seasoned sales representatives.  The named complainants in the lawsuit alleged that, despite their attempts to be hired using the traditional recruiting methods (job postings on the company’s websites) and their extensive experience in the industry, their applications were ignored or they were not advanced past the initial stages of the interview process.  The complaint further alleged that managers and supervisors at Eli Lilly were informed of the desire to hire younger workers and were directed to take age into consideration when making hiring decisions.  In fact, according to the complaint, any hiring manager who wanted to hire someone who was not a “millennial” or an “early career professional” had to get specific approval for the hire.  See, EEOC v. Lilly USA, LLC, Case No. 1-22-cv-01882 (September 1, 2021).  

Although this case is in the early stages and the outcome is uncertain, what is clear is that employers must be careful when developing hiring and recruiting strategies and goals.  The EEOC has supported this class action lawsuit, stating that Eli Lilly’s practices violate the Age Discrimination in Employment Act, which prohibits discrimination in employment opportunities of individuals over the age of 40.  See, Lilly USA Sued by EEOC for Nationwide Age Discrimination (September 26, 2022), https://www.eeoc.gov/newsroom/lilly-usa-sued-eeoc-nationwide-age-discrimination. 

In today’s environment where employers are seeking to create a diverse and inclusive workforce, it is important to ensure that your hiring policies and practices provide equal opportunity to all – and while it is important to recognize the need to overcome previous biases and restrictive hiring practices, the answer is not always to create a policy that provides special preference or treatment for those who were underrepresented.  Instead, the key is to ensure that all individuals, regardless of age, race, gender, disability, criminal conviction records, veteran status, or other protected characteristics are given an equal opportunity to compete for positions with the company. 

MyHRcounsel can assist you in navigating the compliance issues surrounding the hiring process, including establishing policies and practices that will establish an employer’s commitment to equal opportunity.  Contact us today for assistance with policy development, difficult hiring situations, and all other compliance needs related to the employment relationship.