Employers routinely use employment agencies, particularly in executive search to help locate so called “qualified” staff. A person with whom I am very familiar recently told me about an experience with an executive search firm that quite frankly raises cause for concern, particularly as it pertains to diversity recruitment. The incident resulted in these two questions being posed: what does one do when an executive search agency refuses or otherwise fails to provide unsuccessful candidates short-listed for the interview with feedback on the candidate’s interview performance?; Should there be a diversity scorecard for search firms?

In brief this is what happened. A public sector, regulatory organization recently launched a search for a Chief Diversity Officer (CDO), a senior level position within the establishment. The organization retained the services of an executive search firm to help it short-list, and present “qualified” candidates for an interview. Naturally, at the end of the search, the organization made its hiring decision. One of the unsuccessful candidates, in an effort to understand his performance on the interview, made a written request for feedback from search firm. Upon receiving the request the search firm indicated the need to contact its client to gather particulars. A full year has now past,  without the search firm making good on its promise.

A general question flows from this fact pattern. Does a search firm, or its principal, owe unsuccessful candidates a duty to disclose particulars about their interview performance? A related yet hypothetical question is whether an executive search firm has a legal obligation to disclose its principal’s acts of unlawful discrimination in circumstance in which it acquires that specific knowledge?

Let’s make it clear. There is absolutely no disclosed, objective evidence to substantiate any conclusion that either the regulatory organization, or the search firm engaged in untoward conduct, let alone conduct coming within the meaning of unlawful discrimination. However, this competition was for an executive. It was an executive search for a senior, diversity related position. Diversity and discrimination are cousins, close relatives of each other. The failure of the search firm to provide feedback in an executive search for a diversity-related position is a signal of how far we have to go. It is a signal of the level of respect shown to candidates in this field and ultimately evidence of the degree to which diversity, as a practice area, is treated seriously in industry generally speaking. Is it the case that the search firm lacked respect for the very thing that paid its bill in this instance?

What is for sure is that the conduct of the search firm and that of the regulatory organization was and continues to be offensive, and unprofessional. Of course one has to be tentative about the labels used to describe the conduct of the search firm and regulatory organization simply because what happened behind the scenes remains undisclosed.  However, offensive seems to be proper descriptor, given that this is a public sector organization, and there appears to be no regard paid for candidates professional question, particularly both organizations are handling information provided by the unsuccessful candidate.  One cannot help think that is  a public sector organization, and its agents behave in this manner then what is the hope for private sector establishments that he different motivations. I hasten to add that there are plenty private sector organizations that are now committing resources to diversity initiatives and programs.  That being said, the actions of the regulatory organization and its agents in this case begs the question: To what source can organizations look to weed out search firms that are unresponsive, or under-responsive to diversity-related issues?

Legislatures across North America have been busy legislating the right to privacy.  The flip side of the right to privacy is the right, or prohibition against disclosure. Of course, the privacy-disclosure continuum is always a question of balance, at least in a democratic society. So, should legislatures impose a duty on search firms, and organizations generally to disclose interview related information when asked?

Lastly, on these facts, there remains the question of what should people do when confronted with a similar situation? Regardless of the specific actions that individuals may opt take, perhaps there should be rating system, a kind of scorecard for search firms involved in helping organizations search for candidates to work in diversity-related fields. Despite the practical difficulties associated with gathering input information for this kind of a scorecard, such a scorecard should not only be practical but be performance, and experientially based.