It is understood that getting the right people to work for the organization is the key. However, hiring is not such a simple matter as it may appear to be to some. There have been many international incidents establishing the complexities of hiring and the practices that led to very undesirable scandals. Organizations have developed best practices for the process of hiring. These practices lead managers in avoiding problems in the process of acquiring employees.
This paper focuses on the issues of gender bias and hiring aliens without permission to stay. These two problems are constantly considered as important problems of hiring, as is shown in the review of literature in the following section of this paper.
The study uses Phenomenology as the guiding philosophy, as it tends to exploration of the possible elements and determinants associated to the problems of gender bias and illegitimate alien applicants in the hiring process of a firm. We observe the literature, study it and deliver to the reader a clear, focused and comprehensive study on the said issues.
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The study discusses two very important issues of the hiring process and provides recommendations that can help managers prevent hiring unwanted employees or to lose good ones on the basis of two preventable problems. These problems are known to be common in a country like USA, where the legal position of many people in the workforce is questionable and women are commonly disregarded even for positions they deserve.
The paper has been divided into three main sections. The first section is the review of literature on the said problems, which provides the reader with a clear picture of the extent to which the studied problems are present around the world, even in the developed countries. The second section discusses the studied problems on the basis of the collected knowledge through the review of literature. The last section is crucially important, as it delivers to the reader the conclusions and recommendations regarding the studied problems.
Problems associated to hiring are many (Roselius and Kleiner, 2000). For instance, the training of recruiters, as less than half of the Fortune 1000 companies surveyed in 1986 by Personnel Psychology offered any formal training to their interviewers or recruiters (Rynes and Boudrea, 1986). Similarly, some companies have estimated that employee turnover costs due to ineffective hiring range from 35 percent to 100 percent of the employee's annual salary (Deems, 1995). Also, some recruiters do not learn from the previous experiences of making the wrong hiring choice (Gurumurthy and Kleiner, 2002).
GENDER BIAS IN HIRING
In terms of gender discrimination, there are two theories that apply: "disparate treatment" and "disparate impact". Disparate treatment generally involves an organization's policy that treats similarly situated men or women differently because of their gender. This treatment is also referred to as "unequal" or "differential treatment" (Chien and Kleiner, 1999). It usually applies to the inconsistent or unfair application of an employment rule, policy, or practice against a specific individual (General Services Administration, 1998a). For example, a female employee is confronted for returning late from lunch. A male employee who also re turned late is not con fronted. These two employees are treated differently simply because of their gender.
Many researchers have repeatedly investigated sex discrimination in employee selection processes. For example, Rich (1995) claimed that there was statistically significant discrimination in occupations traditionally dominated by men and in senior managerial positions. Ridgeway (2001) affirms that it is a common practice in USA as well as the rest of the world that the higher positions are often held by men in virtually all kinds of organizations. It is a commonly known fact that despite the increase in the rate of women workers in organizations in the United States (Rothman and Black, 1998), the accessibility to leadership and authoritative positions remains disappointingly far-fetched for women in the workforce (Oakley, 2000). Heilman (1997) also stated that when the job is male sex-typed, women with identical credentials are judged to be less qualified and are less likely to be hired. Even if hired, women are compensated less generously than men are. As indicated by these research results, sex discrimination is well demonstrated in the labor market hiring practices and the victims are mostly women. Why does such discrimination exist? Lack of technical capability is certainly not one of the causes; after all, women have been attending the same schools as men and account for over half of the college graduates (Berry, 1996). The discrimination faced by women applicants in the hiring practices are contributed by psychological factors such as stereo types, lack of fit, and social identity improvement.
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In terms of sex stereotypes, men and women often are perceived as opposites. Men are usually thought to be strong and active while women are usually thought to be weak and passive. Men are described as decisive, independent, rational, objective and self- confident, whereas women are described as in decisive, dependent, emotional, non-objective and insecure. Men and women are also depicted differently with respect to qualities of warmth and expressiveness. Women are viewed to be tender, understanding, concerned with others and comfortable with their feelings while men are viewed as just the opposite (Heilman, 1997). These at tributes ascribed to men and women are not only different but also valued differently in Western culture, especially in the business world. Attributes associated with men or "masculine" traits are more highly valued than those associated with women or "feminine" traits. With these stereo types, the labor market is viewed as men's domain because they are perceived as more achievement-oriented. The belief that women's past absence from the workforce and failure to maintain career continuity have reinforced this image is no longer true.
Title VII of the Civil Rights Act of 1964 in USA prohibits discrimination and requires employers to provide equal employment opportunity (EEO) without regard to race, color, religion, sex, national origin, age, disabling condition, or reprisal (General Services Administration, 1998b). EEO is the right of all per sons to work and advance on the basis of merit, ability and potential. It does not require an employer to extend preferential treatment to any person because of his or her protected status, but demands that all per sons receive the same opportunities in terms and conditions of employment (General Services Administration, 1998c). It is illegal under Title VII to discriminate in any term and condition of employment.
Some researchers believe that the problem of gender discrimination in organizations is mainly due to the behavioral incompetence of women. Kaplan and Bradley (2006) noted in a study of young women that competent female leaders were mostly considered as unattractive and unfriendly by the participating young women as opposed to incompetent female leaders who were considered more friendly and attractive, which, in essence, is a call for female leaders to attend more to their interpersonal abilities. Researchers of this line of opinion have put forth a number of factors which they believe to be the cause of the so-called attitudinal incapability of women with regard to workmanship including the "Cinderella Complex" (Dowling, 1988), fear of succeeding (Horner, 1972), and fear of failing (Brenner, Tomiewics and Schein, 1989). Similarly, speaking against the more commonly held belief of discriminatory attitude of males, Horner (1972) argues that the problems women face in achieving professional appreciation are inadvertent.
However, O'Leary (1974) determined in the study that a prominent social predicament of the American society is the presence of a belief that women should not achieve prominence over men of the same age and social levels. Highlighting the affect of cultural values embedded in human minds, King (2006) states that works like Kaplan and Bradley (2006) show there is an active role of stereotypical organizational behaviors affected by culture in the mishap of women's achievements in organizations. Adler and Izraeli (as cited in Orser, 1994) recommend further study of stereotypical behavior both within a country and internationally for better understanding of the effects they cause on women's failure in achieving leadership roles.
Evans (1988) reports on one of the cases of taking action against an American company for hiring illegal aliens in the late 1980s.Wendy's was fined $60,000 for violating immigration law by engaging in a pattern of hiring illegal aliens over an extended time period. This was a negotiated settlement in a plea bargain between the US Attorney's Office and Maryland-based Daveco Inc. of Crofton, Maryland. The INS had conducted an investigation that started in 1986 and involved 30 Wendy's restaurants in Virginia, Maryland, and Washington, DC. The INS finally made its move and arrested 13 illegal aliens in one Daveco restaurant, and four in another, and charges were filed. The charges alleged violations involving "in excess of 20" illegal workers. In the plea bargain, the US attorney did assess the maximum $3,000 per worker, but did not assess six month jail terms to the seventeen illegal aliens. According to Rob Kirstien, Daveco president, the majority of the so-called crimes were paperwork violations, including misdating employee verification forms, signing the forms in the wrong place, and not preparing the information within the 72 hour deadline. Kirstien said the company chose the plea bargain deal because of the cost and time it would take to pursue a defense (El Baba and Kleiner, 2005).
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At the time, Wendy's was the first American employer to be slapped with criminal penalties under the new federal immigration reform law which makes employers responsible for weeding out illegal alien workers. This law was the Enforcement of Immigration Reform and Control Act of 1986 which went into force June 1 of that year where violators at first only received warnings. Wendy's restaurant was the first to be given fines. This new law of 1986 did four things that changed the way employers must view illegal aliens. First, it made hiring illegal aliens a federal crime. Second, it creates an amnesty program to grant legal status to aliens in the country since January 1, 1982. Third, it creates legal status to foreign farm-workers who worked in the fields at least ninety days between May 5, 1985 and May 5, 1986. Fourth, it imposes new penalties on employers who discriminate against workers on the basis of national origin and citizenship (Thompson, 1987, p.32). The law was passed because of the estimates that more than four million illegal aliens were on the pay roll.
According to Webb (2001), employers in the high-tech sector were given some employee relief by legislation that raises the number of foreign workers admitted through the H-1B visa program and eases restrictions on job transfers in the high-tech industry. This industry can avoid hiring illegal aliens by giving more potential foreign employees with these unique skills. The need for skilled foreign employees is growing in biotechnology, chemistry, pharmacodynamics, clinical research, and bioinformatics. It is clarified that these high-tech firms will spend tens of thousands of dollars to sponsor the H-1B visas.
According to Fischer (1997), the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) increases the responsibilities of employers and increases the penalties for hiring illegal aliens. This law requires employers to implement procedures for verifying and monitoring the employee status of all employees and new hirees. The law requires that employers have trained personnel who can handle the documents, fill out the I-9s, and ask lawful questions in the interview process. This law also strengthens the anti-discrimination clause of previous immigration laws that employers cannot discriminate based on foreign appearance and ethnicity.
It is important to note that the IIRIRA has given an exemption from the sanctions for employers that have merely committed technical or paperwork violations and have demonstrated a good faith effort in statutory compliance. For example, an employer who has a system in place for the completion of the paperwork requirements embodied in the I-9 Attestation Form and includes a procedure for the maintenance of I-9 Forms and shows scheduled internal audits and internal administrative training programs, can be granted an exemption and a ten day grace period to update and edit any errors that have resulted in violations (Fischer, 1997, p.91).
A complete understanding of the company's needs for the vacant position is important. A written description of the duties and responsibilities of the job, the time the employee will spend at each, and the relative importance of each is extremely helpful. Studying this will help you determine, whether you actually need to hire or whether you can delegate these tasks to the current employees in the department. If you need to hire, analyze what went right with the previous employee and what did not. Write down your thoughts of an ideal employee for the job. Then, study it objectively. Is it possible for one person to have all these qualities? Next, make a realistic list, which can determine the hiring criteria. What sort of experience is truly necessary to perform the job effectively? What educational background is necessary? How intelligent must the person be to perform the job? For example, Microsoft hires people, who have an ivy-league education and whose intelligence is above average. What kind of personality is required for the job? As it is well known that different jobs require different personality types. Looking at the personal profile of an individual can help reveal basic character traits. For example, a person having high energy generally implies that this person gives the extra effort in the small things as well as the important things. A study of the professional profile can reveal whether the person is loyal to a cause, person or company, and so on. Does the candidate's personality conflict with the prevailing personality mix in the department? A study of the business profile will reveal whether the person understands that you are in business to make a profit. There are many behavioral models which help shed light on the candidate's personality, not only during the hiring process, but also help with the counseling, training and motivating these employees later in the workplace (Gurumurthy and Kleiner, 2002).
Next, determine two or three characteristics that will have the most impact on the candidate's ability to do the job. These are not the only criteria for selection, but narrowing down the list of qualities you are looking for, to the most important ones, will reduce the amount of time involved in the hiring process and introduce efficiency. Determine the salary offer. When possible, be flexible when you have found the right person. There are many ways of recruiting the best candidates. The key is in knowing where to look, and the benefits of each option. One could recruit within the company, through personal recommendations, recruiting services, and recruiting through advertising.
When establishing criteria for selection, make sure that these criteria do not exclude people on the basis of race, religion, national origin, age, sex, marital status, or physical handicap not directly related to job performance. One of the best ways to avoid making a mistake is to include in your job criteria only those factors that relate to the ability to do the job. When affirmative action is implemented correctly, everyone in the work place is a winner. Companies and organizations employ a more diverse pool of individuals, bring in different points of view, and experience different cultures. However, when affirmative action is abused, problems arise. Some claim that affirmative action actually fosters reverse discrimination, making discrimination against white males just as bad as discrimination against women and minorities (Pasour, 1998). Affirmative action is also blamed for causing tension between whites and minorities and promoting employment of less skilled workers in order to meet diversity quotas. Another problem of affirmative action is referred to as placing a stigma of in competence on women and minorities because they might be subjected to the presumption that they were hired not because of their qualifications but because of their protected status. Research results indicates that when there is an association with affirmative action, women employees are not only evaluated less favorably than men employees, but they were also evaluated less favorably than women employees not associated with affirmative action (Heilman, 1997). This outcome suggests that affirmative action not only creates a stigma of incompetence, but also reaffirms and reinforces sex stereotypes. With these negative impacts, affirmative action itself can be another contributor to sex discrimination problems rather than being a remedy. The point is that simply ensuring the presence of women in the workplace is neither a solution to minimizing sex discrimination nor an appropriate societal or organizational goal.
For decades, employers in the United States in places with high concentrations of illegal aliens have taken advantage of the lax enforcement of laws. The illegal aliens are a cheap source of labor for companies and profit margins can be expanded in two ways. The minimum wage laws do not have to be followed which means illegal aliens will definitely be paid below this scale. The cost savings will mean higher profit margins for the companies. Also, employers make more profits because of the savings by not reporting these workers to the government. They can avoid all the various withdrawals for each employee for Social Security, state income taxes, and federal income taxes. These benefits enjoyed by employers in the past have been offset now by the crackdown by law enforcement on companies who hire illegal aliens. This crackdown will probably reflect some of the past actions taken against private employers for hiring and using illegal aliens, which have been highlighted in the review of literature section.
Under the IIRIRA, the Attorney General of the United States was instructed to implement three eligibility confirmation pilot programs. These consisted of the Basic Pilot Program, the Citizen Attestation Program, and the Machine-Readable Program. In the Basic Pilot Program, employers complete I-9 Forms with a more limited list of documents and are required to obtain Social Security numbers and alien number information for non-citizens. The employer is also responsible for then utilizing a confirmation system to verify the information obtained within three working days. If the system is unable to confirm, the burden shifts to the employee to contest non-confirmation. Only after the non-confirmation process is final must the employer terminate the employee (Fischer, 1997).
Another important provision of IIRIRA for employers is that to eliminate "consulate shopping", the IIRIRA specifies the fact that a non-immigrant visa is sued after September 30, 1996 is void as soon as the non-immigrant alien overstays the period of authorized stay. Such an alien is then ineligible for re-admission as a non-immigrant except on the basis of a visa issued in a consular office located in the alien's country with the sole exception of extraordinary circumstances. Also, under the IIRIRA, the criminal penalties are now available for an employer knowingly presenting a false document that contains a false statement or fails to contain any reasonable basis in law or in fact (Fischer, 1997).
The application process can take up to four months. The majority of the H-1Bs are hired by biotech firms and other technology companies. Many of them are hired from US graduate institutions. The H-1B visa holder is also granted the privilege of applying for permanent resident status. The employer is the key player in this process by putting up the money and taking the time to get the H-1B visa holder through the process. Under the new regulation, H-1B visa holders are also now allowed to change jobs during the application process. The change in the procedure allows H-1B applicants to be able to assure a needy employer will sponsor the thousands of dollars to get through the green card process (Webb, 2001).
With regard to this unique aspect of the immigration law, the H-1Bs are valuable employees in most situations, which is why the investment of the employer is often worth the benefits and contributions made by the high-tech employee over the long run. However, in some in stances, when the employer and employee with the H-1B visa holder have a falling out in the middle of the application process, the new measure allows this individual to continue the process with a new employer and keep the same paperwork. This change in the law makes it easier for the H-1B visa holder to be independent from the employer's decisions about rather to pay for the process or terminate the relationship and the high-tech worker has problems with immigration status because of it.
Because of the Equal Employment Opportunity Commission (EEOC), the use of psychological, personality, and intelligence testing in employment has been reduced. The concern here is that, certain tests have in-built cultural or ethnic biases that can, when interpreted and used as the basis for hiring, result in discrimination. It is safer for employers to use tests that have been subjected to considerable validation and reliability surveying by a professional, or use tests that have been approved by the EEOC. It is generally wise to have an application form that clearly states that employment will be solely "at will" and not for a lifetime or specific period of time. This statement should be in bold type and should be placed just above the applicant's signature. This protects the employer in the future when he has to fire the employee. During an interview, there are specific questions that cannot be asked. Reading the 1964 Civil Rights Act, Title VII, and also the amendments in 1968 and 1972, will make the hirer aware of the basic do's and don'ts. The human resource department generally, is well versed in these legalities and it is helpful for the hirer to have them involved in the initial selection process.
With the "phoner" list, you can conduct brief telephone interviews to determine the essentials, so that you meet only the probable candidates. This is, sort of, a fact-finding process to verify all flagged areas in a resume. It is important to find out employment dates, salary progressions, and reasons for leaving different employers. The goal here is to determine as much as possible about the candidate's capability. Make sure you can call the candidate at a time that is convenient for him/her. This way you can have a more responsive interviewee. At this time, do not say what you are looking for. Ask open-ended questions. Make sure you listen carefully. At the end of the telephone interview, you should be able to determine if the candidate is able to do the job, or that you are still not sure, or that the candidate seems able and possibly willing to do the job. Those who seem able and willing to do the job should be called in for a face-to-face interview. When arranging a face-to-face interview do set some ground rules such as: you expect punctuality; you would like to be informed if for any reason the candidate cannot make the interview; that all information shared with you will be confidential; and that you intend to check references. This is a critical part of the hiring process. Begin with evaluating/developing your own interviewing style that is comfortable to you. Since each person is different, you have to have the ability to be flexible in your questioning techniques. Another important point is to listen actively. Take notes so that it will help you better evaluate the candidates when all the interviewing has been done. Remember that just as you are evaluating the candidate, he/she is also evaluating your company through you and determining whether he/she would like to work at your company.
CONCLUSIONS & RECOMMENDATIONS
In the book, Help Wanted, the authors talk about the coming workforce 2000 and future skilled worker shortages. Companies need to focus on finding the right employees to get and maintain a sustainable competitive advantage through worker skills. Jack Welch, the CEO of GE, has made the remark that, number one employees belong to the number one company in the marketplace; number two employees belong to the number two company, and cannot be allowed to remain in the number one company. Successful hiring takes time and money. However, the return on this investment can be very high. In summary, make a commitment to each hiring situation and give it the top priority. Become familiar with legal ramifications in hiring. Be clear on what you need for the job. Be realistic and objective. Invest in the recruiting process and monitor or do the screening process yourself. Learn to become a better interviewer and to be an effective listener. Check all references and do not delay the decision.
Bad hires affect the company in many ways. Each year American companies spend vast amounts of time, money and energy on newly hired employees who either quit after the training or are terminated. Does your company use resources to train employees who will eventually leave, and work for your competitor using the skills you taught? Effective hiring not only involves hiring them, but also retaining them and helping them better their skills for the company's advantage. Also, ineffective hiring leads to employees who do not quit and are not terminated, and do not make a single meaningful contribution to their companies. The labor department studies show that approximately 50% of new hires last only six months in their new jobs. Quality workers, will be a company's most important tool for building up productivity, capturing new markets, and staying ahead of competition. Quality workers are becoming a key competitive advantage to companies.
American employers must be aware of these laws concerning hiring illegal aliens. The burden of responsibility on the employer has grown significantly since the passage of the Immigration Reform and Control Act of 1986 and then the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. This latter law impacted the former law by reconstructing the exclusion and deportation process as well as narrowing the available waivers.
Awareness of the specific guidelines and procedures required of employers is very important to avoid violating the parameters of these two laws. It must be noted that the Immigration and Nationality Act was amended by the Immigration Reform and Control Act of 1986 to require employers to maintain extensive record-keeping and internal audit systems to prove and verify the status of workers. The magnitude of fines was raised for non-compliance. In addition, the American employers were responsible for their behavior in hiring and firing any person in a "protected" category in regards to the use of discrimination or racism. The whole burden of responsibility increased for employers under this Immigration Reform and Control Act of 1986 in terms of the element of "knowingly" hiring illegal aliens.
All employers, under the laws today, are subject to sanctions not only for hiring illegal aliens but also for failing to complete and retain the required statutory paperwork. While the IIRIRA does provide an exemption for technical and paperwork errors, employers must seriously consider the following suggestions to avoid violations and potential sanctions under the IIRIRA:
Implement procedures to verify and re-verify the identity and employment authorization of all new hires.
Constantly monitor files in order to terminate the employment of individuals when work authorization expires by maintaining some form of alerting system to keep aware of expiration dates.
Assist capable employees in gaining timely extensions of their employment status to ensure a stable workforce.
Internally audit all I-9 Forms for compliance at least on an annual basis and correct I-9s for errors.
Train interviewers and personnel involved in the hiring process to recognise acceptable documents and know how to complete I-9 forms and ask appropriate lawful interview questions and meet the legal requirements for excluding applicants from jobs.
By following these basic guidelines, the employer can be assured to be in compliance with the IIRIRA as well as the Immigration Reform and Control Act of 1986. Both of these laws have put the responsibility on the employer for keeping an internal audit system and manage the paperwork for the foreign worker. The failure to construct this kind of internal audit system and follow the procedures to retain compliance means employers can face violations and stiff penalties for each illegal alien hired by their company due to lax and in sufficient systems.
Sex discrimination has a long history, and women have striven a long way to be treated as equals to men. Still, many sex biases still foster perceptions and expectations that women are not fit to hold the same positions that men do.
Employment opportunities should be open to everyone. In order to enforce this equal opportunity and given the presence of sex discrimination in the workplace, affirmative action is a necessary and important part of the business world. When implemented appropriately, affirmative action is a remedy to women and minorities.
However, when being abused, it also has negative con sequences and implications.
Affirmative action is not the solution to sex discrimination. Attention should be directed toward the role of sex stereotypes in sex discrimination. Only when sex stereotypes are eliminated will sex discrimination problems be solved. Hope fully, affirmative action will be abolished eventually, not because the opposition prevails, but because it is simply not needed anymore.