Although not widely known among employers, the Massachusetts Commission Against Discrimination (“MCAD”) has a testing program that is designed to test, gather data and make recommendations to initiate claims of discriminatory hiring practices. The MCAD uses “Paired Testing” whereby two job candidates who are matched in credentials, except for some characteristic such as age, race or sex, apply for similar positions. The MCAD analyzes the employer’s responses to job applicants to determine whether the company engaged in discriminatory hiring or placement practices. In 2009, the MCAD subjected forty employers, employment agencies and public accommodation providers to testing investigation.
The MCAD initiated a complaint against Cabot’s Ice Cream, Inc. based upon results obtained through its testing program. The MCAD found that the company used an employment application that improperly asked for the applicant’s date of birth. It also determined that the company showed a preference for testers who were substantially younger than forty, rather than for older testers who actually had superior qualifications for the job. The MCAD found that the company treated testers it believed to be high school or college students more favorably. Cabot’s Ice Cream, Inc. was less likely to follow up on applications where the testers were over forty years of age. The MCAD brought a complaint against the company based on discrimination in hiring practices. The complaint has been resolved with the company’s agreement that it will change its hiring practices and report into the MCAD on its hiring efforts. The company has agreed to stop asking for applicant’s dates of birth.