June 2015

Employers routinely use employment agencies, particularly in executive search to help locate so called “qualified” staff. Search firms come in all sizes, depth of experience and professionalism.

What follows is a case of plain bad interviewing. What’s worse the interview occurred in a government, regulatory body charged with enforcement responsibilities. The organization involved touts a commitment to diversity and in fact publicizes its diversity commitment in its posted strategic plan.

A racial minority male 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.

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 a 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. More than eighteen months have now past without the search firm making good on its promise. In fact, the search firm has not contacted the unsuccessful candidate since it made the promise to gather intelligence and respond to the candidate’s request.

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 an executive search for a senior, diversity related position.

Arguably, diversity and anti-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, not how far we have come. 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 questions.  One cannot help wonder out loud whether the behavior of this public sector employer is tantamount to that of private sector establishments that operate on different economic motivations, but perhaps similar moral ones. I hasten to add that there are plenty private sector organizations that are now committing substantial resources to diversity initiatives and programs.  That being said, the actions of this regulatory organization and its agents in this case beg 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 by a candidate interviewed for a position?  Personally, I cannot see why not. Any downside to disclosure far outweighs those on the upside.

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 data for this kind of a scorecard, it should not only be practical, but it should be performance, and experientially based.

Search firm that engage in conduct that is unprofessional either at the request of their principal or driven by other considerations should be publicly embarrassed. Further, governments together with governmental agencies boards and commissions should, as a matter of operational human resource policy, refuse to retain search firms that lack diversity sensitivity in their methods and practices.  Why should public dollars go to support and line the pockets of private enterprise that do not align their operational values with the morally prudent one articulated and enforced in society.

In the coming months, WINN will endeavor to develop a scorecard that governments may opt to use when hiring search firms..