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If a picture paints a thousand words, then why can't I Zoom interview?

November 2020 employment law letter
Authors: 
James P. "Jim" Reidy, Sheehan Phinney Bass & Green PA

With many hiring managers working from home, COVID-19 has had a big impact on business recruiting. Before you forge ahead, however, and begin conducting remote job interviews over Zoom or one of the other cloud platforms, you must be careful to avoid resurrecting a potential discrimination pitfall from the 1970s.

If a face could launch a thousand ships . . .

For those who remember the '70s pop rock group Bread, you may recall the song lyric, "If a picture paints a thousand words, then why can't I paint you?" The song was very popular back then. So, too, was the practice of employers asking job applicants to submit photos with their résumés.

The submitted photos helped some employers size up people they might want to hire or at least interview. They also opened the door for some bad-acting employers to discriminate in hiring based on race, color, gender, age, and so on. Sadly, many qualified candidates literally didn't get a second look, and the practice went on for years until candidates challenged it as discriminatory.

Then where am I to go?

Some state laws now prohibit the requirement of providing photographs with job applications or consider the practice to be evidence of workplace discrimination. New Hampshire's employment laws, however, don't specifically prohibit the practice.

Federal discrimination laws also don't bar the practice. In 2016, however, the Equal Employment Opportunity Commission (EEOC) took the position that employers shouldn't ask job applicants for photographs. In its guidance on discrimination in the hiring process, the EEOC states:

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