AAEO Coordinator Training
Table of Contents
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AAEO Coordinator Training Description………….……........…………...…4
Things To Do Before Filling Job…………………………………..........…....5
Advertising…………......………………....……………………...……............8
Screening Applicants…………………………………………………………11
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AAEO Coordinator Training
Table of Contents
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Interviewing…………………………………………………………………….…12
Title VII……………………………………………………………………..….17
Age Discrimination in Employment Act (ADEA)……………………….….29
Equal Pay Act…………………………………………………………………31
Americans with Disabilities Act (ADA)……………………………………..33
Review Accommodations for the Disabled…………………………………….50
Review the Process (AAEO Data Card)…………..........……………………..51
The Recruitment Process…………………………………………….…………52
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AAEO Coordinator Training
Table of Contents
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Checking References………………………………………………………….…57
Hiring…………………………………………………………………….………...58
Adverse Impact & Applicant Flow Data Under Title VII………………….…...67
Equal Employment Opportunity—U.S. Equal Employment Opportunity
Commission—Affirmative Action Links….…………………………………81
3
AAEO Coordinator Training
Provides guidance on what is required in
recruitment, interviewing, and selection and
hiring to comply with the federal statutes
outlawing employment discrimination.
4
THINGS TO DO BEFORE FILLING
A JOB OPENING
Before an employer advertises for a position (and
ideally before an opening occurs), it should create
an appropriate recruitment and selection process
and make basic decisions about how to conduct the
process. No amount of training or preparation can
totally insulate employers from having
discrimination charges filed against them but
training and preparation can reduce the number of
charges filed and significantly reduce an employer’s
liability from a charge.
5
Job Description:
Review the written job description for the
position to be sure that it describes the
essential functions of the position.
•
•
•
•
•
•
If you have written job descriptions, review them for accuracy.
To review and prepare a detailed job description, you should:
Observe the jobs;
Talk to employees who actually do the jobs;
Observe how the positions fit into the other positions in the
organization;
Decide if you need to make changes in the functions or duties;
Draft descriptions based on your experience and
observations; and
Use the position descriptions in the selection process.
6
Workforce Survey
Look at your workforce to determine if some
protected group (race, sex, national origin, religion,
age, etc.) is underrepresented.
NOTE: Under representation does not require an
employer to hire a member of the underrepresented
group.
7
Examine the methods used to solicit
applicants.
Decide if the methods used in the past have
resulted in a diverse workforce and how you want
to recruit for future openings. Will the method you
choose reach all areas of the population, or are
some groups excluded? If some areas or groups
are excluded, you should broaden the scope of
your recruitment effort.
8
Advertising or posting positions
Before you advertise or post for open positions, you also
should consider what you want an applicant to do to apply for
the job. Some things to consider:
• Should an applicant submit a resume or an application? If an
application, then the form should be reviewed to ensure that it
does not solicit unlawful or improper information.
• Determine whether potential applicants who have disabilities
can obtain applications. Be prepared to accommodate the
needs of applicants with disabilities.
9
Advertising
Be careful about the language that you use; it could
subject you to liability if it is discriminatory. The
following are examples of types of phrases which
should not be placed in advertisements.
• “Recent college graduate” (ADEA violation)
• “0-1 years of experience” (ADEA)
• “Young, energetic” (ADEA)
• “hostess or waitress” (Title VII)
• “Christian carpenter wanted” (Title VII)
10
Screening Applicants:
Unless the applicant group is very small,
you will need to screen out the less
qualified applicants.
•
Before screening applicants, establish written criteria that are
objective and relate to the requirements or qualifications for the
position.
•
Apply the criteria consistently.
•
Make and keep a record of the criteria and how they were applied.
•
Review the results of the screening process to determine if the
criteria had a disparate impact on any particular group.
In one case, the Equal Employment Opportunity Commission
(EEOC) sued a company which the company’s receptionist was
throwing away applications from African American applicants. If you
focus only on training human resource managers and interviewers,
you will overlook others who could subject you to liability.
11
Prepare the Interviewers.
Before you begin the interviewing, make
sure that:
•
The persons who will do the interviewing are familiar with the
questions to be asked and can be relied on to ask the prescribed
questions and give objective assessments of the persons
interviewed.
•
All persons (including receptionists, clerks, etc.) who come in contact
with the applicants and interviewees are trained to deal with
applicants and interviews in a polite, even-handed way.
In one case, the EEOC sued a company which the company’s
receptionist was throwing away applications from the African
American applicants. If you focus only on training human resource
managers and interviewers, you will overlook others who could
subject you to liability.
12
Interview
Before you begin interviewing, create a list
of written interview questions. While not
required by law, it is a good idea to:
• Ask the same questions of each applicant.
• Make and retain notes of each interview.
• Make sure the person selected is objectively the
most qualified or at least equally qualified in
comparison to the criteria that you set.
• Retain the records for a least one year.
13
APPLICATION AND INTERVIEWING
The statues enforced by the EEOC do not specify
information that may not be solicited of applicants
for employment. What is important is whether the
information being solicited is sought for
discriminatory purposes. Nevertheless, inquires
which directly or indirectly disclose the applicant’s
race, color, religion, sex, national origin, or age will
be closely scrutinized and may constitute evidence
of discrimination. Questions that are likely to elicit
information about an applicant’s disability are
unlawful before the applicant has been given an
offer of employment.
14
APPLICATION AND INTERVIEWING
(continued)
In addition, some state laws do expressly prohibit
inquiries about an applicant’s race, color, religion,
sex, national origin, age disability or other traits,
and some states and municipalities prohibit
employment discrimination based on other ground
(for example, discrimination based on sexual
orientation, marital status or appearance).
15
APPLICATION AND INTERVIEWING
(continued)
The key to lawful employment inquiries is to ask
only questions that will provide information about
the person’s ability to do the job, with or without
reasonable accommodation. Asking questions in
the following area, either on an employment
application or in an interview, might subject an
employer to liability, the information is used to
discriminate.
16
APPLICATION AND INTERVIEWING
Title VII
•
Are you available to work on weekends?
Although it is perfectly reasonable to ask if an
applicant can work weekends if there is a need,
this question may discourage applicants of a
certain religion, which prohibit working Friday
nights, Saturdays or Sundays. If there is a
business necessity for asking this question, the
employer should make it clear that it will make a
reasonable effort to accommodate the employee’s
religious practices.
17
APPLICATION AND INTERVIEWING
Title VII (continued)
• Do you have children under the age of 18? How many?
How old are they? What arrangements will be made for
child care?
Questions of this type are often used to discriminate
against women. It is a violation of Title VII to require preemployment information about child care arrangements
from female applicants only, and employers cannot have
different hiring policies for men and women and preschool children. Information needed for tax or Social
Security purposes can be obtained after the applicant is
hired.
18
APPLICATION AND INTERVIEWING
Title VII (continued)
•
Are you a United States citizen?
Title VII extends coverage to both U.S. and non-citizens with respect
to employment in the United States. Although Title VII does not
specifically prohibit discrimination on the basis of citizenship,
citizenship requirements may violate Title VII where they have the
purpose or effect of discriminating on the basis of national origin.
Therefore, where consideration of citizenship has the purpose or
effect of discriminating against persons of a particular national origin,
a person who is a lawfully immigrated alien, legally eligible to work,
may not be discriminated against on the basis or his/her citizenship,
except in the interest of national security or as determined under a
U.S. statute or presidential executive order respecting the particular
position or premises in question.
19
APPLICATION AND INTERVIEWING
Title VII (continued)
The Immigration Reform and Control Act of 1986
(“IRCA’) makes it a crime to knowingly hire an
unlawful alien and requires all employers to verify
the citizenship status of all job applicants before
hiring them. Rather than asking the above, an
employer would be better advised to ask “Can you,
after being hired, verify your legal right to work in
the United States?” This question must be uniformly
asked and an employer cannot require actual
production of work authorization until after hiring.
20
APPLICATION AND INTERVIEWING
Title VII (continued)
• Credit record? Charge accounts? Own your home? Own your
furniture? Own a car?
Rejection of applicants because of poor credit ratings has a
disparate impact on minority groups and has been found
unlawful by the Commission, unless business necessity can
be shown. Inquires about an applicant’s financial status, such
as bankruptcy, car ownership, rental or ownership of a house,
length of residence at an address or past garnishments of
wages, if used to make employment decisions, may also
violate Title VII. Such inquiries also might have a disparate
impact on women, because many women do not have credit
history separate from their husband’s histories.
21
APPLICATION AND INTERVIEWING
Title VII (continued)
• Height? Weight?
Minimum height and weight requirements are
unlawful if they screen out a disproportionate
number of minority-group individuals (e.g.,
Hispanics or Asian Americans) or women, and the
employer cannot show that these standards are
essential to the safe performance of the job in
question. Furthermore, a court has recently ruled
that morbid obesity is an impairment and may be a
disability under the ADA.
22
APPLICATION AND INTERVIEWING
Title VII (continued)
• What is your maiden name?
Because this question applies only to women and is
not relevant to a person’s ability to perform a job, it
could be used for discriminatory purposes. A
permissible alternative in performing background
checks is to inquire as to all names used by an
applicant.
23
APPLICATION AND INTERVIEWING
Title VII (continued)
• Are you married, single or divorced?
Some employers have refused to hire married women for
certain jobs. For example, for many years many airlines would
not permit married women to be flight attendants, though other
employees could be married. The courts have declared this a
Title VII violation.
An employer would also violate Title VII if it refused to hire a
married woman or pay her the same as a married man for the
same work. Finally, an employer cannot refuse to hire a
married woman because of the employer’s belief concerning
morality or family responsibility.
24
APPLICATION AND INTERVIEWING
Title VII (continued)
• Are you known as Ms., Miss, or Mrs.?
This is another way to ask an applicant’s sex and marital
status, and such questions serve no other preemployment purpose.
• What is your spouse’s name? Where does he/she work?
To the extent that this question asks for marital status,
the comments on martial status apply. A spouse’s name
can also be used as an indication of religion or national
origin.
25
APPLICATION AND INTERVIEWING
Title VII (continued)
• Are you pregnant? Do you plan to have children?
Title VII prohibits discrimination based on
pregnancy, childbirth and related medical
conditions. Therefore, employers should not ask
questions regarding pregnancy or future
childbearing plans.
26
APPLICATION AND INTERVIEWING
Title VII (continued)
• Have you been arrested for, or convicted of, any crime?
Because members of some minority groups are arrested
substantially more often than whites in proportion to their
numbers in the population, making personnel decisions on the
basis of arrest records involving no subsequent convictions
has a disproportionate effect (adverse impact) on the
employment opportunities of members of these groups. Thus,
the use of arrest records alone as an absolute bar to
employment is illegal. However, conduct which indicates
unsuitability for a particular position is a basis for excluding an
applicant or employee. Where it appears that the applicant or
employee engaged in the conduct for which s/he was arrested
and that the conduct is job related and relatively recent,
exclusion from employment is justified.
27
APPLICATION AND INTERVIEWING
Title VII (continued)
It is the Commission’s position that an employer’s policy or
practice of excluding individuals from employment on the
basis of their conviction records has an adverse impact on
Blacks showing that they are convicted at a rate
disproportionately greater than their representation in the
population. However, when the employer can present more
narrowly drawn statistics showing that Blacks or Hispanics are
not convicted at a disproportionately greater rate, or that there
is no adverse impact in their own hiring process, then no
violation would occur. Other factors to be considered include
(1) the nature and gravity of the offense; (2) the time that has
passed since the conviction and/or completion of the
sentence; and (3) the nature of the job being held or sought.
28
APPLICATION AND INTERVIEWING
Age Discrimination in Employment Act (ADEA)
• How old are you? What is your date of birth?
Asking older applicants to give their age might deter
them from applying, and can indicate discrimination
based on age. So, applications that request such
information will be closely scrutinized to ensure that
the information is not used to discriminate against
older applicants.
29
APPLICATION AND INTERVIEWING
Age Discrimination in Employment Act (ADEA)
continued
• When did you graduate from high school? College?
Most people graduate from high school and college
around specific ages, so this information can be
used to approximate an applicant’s age. A
graduation date does not indicate a person’s ability
to do a job, and employers should not ask for such
information on applications or during interviews. If
such information is needed for legitimate business
purposes, it can be obtained after a conditional job
offer is made.
30
APPLICATION AND INTERVIEWING
Equal Pay Act
• How much money does your husband make? How
much salary do you need?
Some employers ask these questions if they know
that a woman is married, the assumption being that
she should work for less money because her
husband is the “primary breadwinner.” One woman
who was asked this impermissible question
responded: “The question is: how much am I
worth?”
31
APPLICATION AND INTERVIEWING
Equal Pay Act
• What is the lowest salary you will accept?
Women generally have been relegated to lower
paying jobs than men, and paid less than men for
the same work. As a result, a woman might be
willing to work for less pay than a man would find
acceptable. However, it is unlawful to pay a woman
less than a man because of community wage
patterns, which are based on discrimination. Men
and women performing substantially equal work
should be paid equal wages.
32
APPLICATION AND INTERVIEWING
Americans with Disabilities Act (ADA)
• Note: While this section concerns the interview process
as it is regulated by the ADA. The rules and regulations
pertaining to interviewing apply equally to employment
applications.
As noted above, the ADA expressly makes it unlawful to
make any pre-offer inquiry about an applicant’s disability.
Although inquiring about a person’s minority status or
age may result in unlawful discrimination if subsequent
employment decisions are based on the information
obtained, under ADA merely making the inquiry is
unlawful.
33
APPLICATION AND INTERVIEWING
Americans with Disabilities Act (ADA)
During the interview process, the interviewer should take
special care to avoid the following types of inquiries:
• Do you have a disability?
• What is the nature or severity of your disability? (Or, the
nature and severity of any conditions or diseases for which an
applicant has been treated.)
Instead, ask an applicant whether s/he can perform the duties
of the job with or without accommodation or give a test (but
only if all applicants are asked the same question or given the
same test).
34
APPLICATION AND INTERVIEWING
Americans with Disabilities Act (ADA)
NOTE: An employer may ask about the individual’s
ability to perform both essential and marginal
functions of the job. But an employer cannot screen
out because of the inability to perform marginal
functions. If an individual has a known disability that
may interfere with performance, the employer may
ask that person to describe or demonstrate
performance, even though this is not asked of other
applicants.
35
APPLICATION AND INTERVIEWING
Americans with Disabilities Act (ADA)
• Have you ever been hospitalized?
• Have you ever been treated for a mental illness?
• Are any of your friends or family disabled?
The ADA forbids discrimination based on a person’s
relationship or association with a disabled person.
Example: Suppose that the interviewer was aware that
the applicant’s spouse had the HIV virus. It would be
unlawful to base an employment decision on that
knowledge.
36
APPLICATION AND INTERVIEWING
Americans with Disabilities Act (ADA)
• An applicant’s past record of a disability—
It would be unlawful to question the applicant regarding his
record of addiction or the nature of his treatment. In addition, it
would be unlawful to decide not to hire the applicant based on
that knowledge.
• Have you ever filed a worker’s compensation claim or suffered
a disabling injury in a previous job?
This is unlawful because it is likely to reveal information about
a person’s disability prior to giving that person a job offer.
37
APPLICATION AND INTERVIEWING
Americans with Disabilities Act (ADA)
• The EEOC has recently determined that obesity is
clearly an impairment if the person has severe
obesity, which has been defined as body weight
more than 100% over the norm, see the Merck
Manual of Diagnosis and Therapy 981 (Robert
Berkow ed., 16th ed. 1992), is clearly an
impairment.
38
APPLICATION AND INTERVIEWING
Americans with Disabilities Act (ADA)
In addition, a person with obesity may have an
underlying or resultant physiological disorder, such
as hypertension or a thyroid disorder. A
physiological disorder is an impairment. See 29
C.F.R. 1630.2(h). Being overweight, in and of itself,
generally is not an impairment. See 29. C.F.R. pt.
1630 app. 1630.2(h) (noting that weight that is
“within ‘normal’ range and not the result of
physiological disorder” is not an impairment).
39
APPLICATION AND INTERVIEWING
Americans with Disabilities Act (ADA)
•
Will you need time off for medical treatments or for other reasons
associated with your disability?
At the pre-offer stage, the information sought is not likely to be
relevant to whether a person is able to perform the essential
functions of the job with or without reasonable accommodation. Even
if it is relevant it still cannot be asked in the pre-offer stage.
The interviewer or selecting official also cannot ask about an
applicant’s disability during pre-offer reference checks. In addition,
because the ADA, makes it unlawful to discriminate on the basis of
disability as the result of contractual or other agreement, it is unlawful
for an outside firm making selection decisions, interviewing
candidates or making pre-offer reference checks on behalf of the
employer to make prohibited inquiries.
40
APPLICATION AND INTERVIEWING
Americans with Disabilities Act (ADA)
An employer may ask:
• All applicants (whether with or without a disability) whether
they can perform the duties of the job, with or without
accommodation.
• If the applicant has the necessary ability and experience in
relation to specific duties associated with the job functions.
• If the applicant has the necessary licenses, diplomas, training,
certificates, or other qualifications required.
• The applicant to describe or demonstrate how s/he will
perform job functions, if this is required of everyone,
regardless of disability or if the applicant has a known
disability that could interfere with performance of job functions.
41
APPLICATION AND INTERVIEWING
Americans with Disabilities Act (ADA)
If a demonstration is requested, the employer must be ready
to provide a necessary accommodation to allow a person with
a disability to perform the demonstration or reschedule the
demonstration to allow the employer to provide the necessary
reasonable accommodation.
• If the applicant can meet the requirements of the employer’s
work hours, overtime work, and attendance policies.
• The applicant’s previous employers about the job functions
and tasks performed by the applicant, the quantity and quality
of the work performed, and how the work was performed. It
may ask about the applicant’s attendance record and other
job-related questions that are not likely to disclose disability.
42
APPLICATION AND INTERVIEWING
Americans with Disabilities Act (ADA)
Notwithstanding the prohibitions stated above, an employer may:
•
Test the ability of all applicants (with or without disabilities) to perform
the duties of the job.
•
Test applicants for abuse of unlawful drugs (former drug addicts or
alcoholics may qualify as individuals with disabilities entitled to
necessary reasonable accommodation).
•
Select the best qualified candidate. (However, neither a candidate’s
need for reasonable accommodation nor his inability can be factored
in to decide which candidate is best qualified.)
•
Refuse to hire someone whose disability poses a direct threat to the
health or safety of an individual or others, if there is a significant risk
of substantial harm and the risk cannot be mitigated through
reasonable accommodation. (See the discussion below.)
43
APPLICATION AND INTERVIEWING
Americans with Disabilities Act (ADA)
Reasonable accommodations during the application and
recruitment process. Most employers are aware that
reasonable accommodations be made for disabled individuals
who, once hired, can perform the essential functions of their
jobs with such accommodations. Employers should also be
aware of the requirement that reasonable accommodations be
given to individuals who need them in order to successfully
complete applications. (Note: This outline only deals with the
hiring process, and not all of the issues of reasonable
accommodation in employment.
44
APPLICATION AND INTERVIEWING
Americans with Disabilities Act (ADA)
The ADA requires that tests be given to people with disabilities
that have impaired sensory speaking or manual skills in a
format the does not require use of the impaired skill, unless
the test is designed to measure that skill.
Some examples of accommodation are:
• Substituting a written test for an oral test (or written
instructions for oral instructions) for people with disabilities
that have impaired speaking or hearing skills.
• Administrating a test in large print, in Braille, by a reader, or on
a computer for people with visual or other reading disabilities.
45
APPLICATION AND INTERVIEWING
Americans with Disabilities Act (ADA)
• Providing the servers of a sign language interpreter for
applicants with impaired hearing during the interview and
testing procedures.
• Allowing people with visual or learning disabilities or people
with disabilities that limit the use of their hands to record test
answers by means of a tape recorder, dictation machine or
computer.
• Providing extra time to complete a test for people with certain
learning disabilities.
• Simplifying test language for people who have limited
language skills because of a disability.
46
APPLICATION AND INTERVIEWING
Americans with Disabilities Act (ADA)
• Scheduling rest breaks for people with certain mental or other
disabilities that may require such breaks.
• Allowing a person with a mental disability whom cannot
perform well when there are distractions to take a test in a
separate room.
• Where it is not possible to test an applicant with a disability in
an alternative format, an employer may be required, as a
reasonable accommodation, to evaluate the skill or ability
being tested through some other means, such as an interview,
education, work experience, licenses or certifications or a job
demonstration.
47
APPLICATION AND INTERVIEWING
Americans with Disabilities Act (ADA)
Generally, an employer is only required to provide an
accommodation if it knows, before administering a test, that
an accommodation will be needed, it is suggested that the
employer inform applicants, in advance, of any tests that will
be administered as part of the application process that they
may request an accommodation, if needed.
The employer may require that an applicant with a disability
request an accommodation within a specific time period
before administration of the test. The employer may require
the applicant with a disability to document the need for an
accommodation. If the only possible accommodation would
cause undue hardship to the employer, the employer should
document:
48
APPLICATION AND INTERVIEWING
Americans with Disabilities Act (ADA)
• All unsuccessful efforts to find more feasible alternatives; and
• That the necessary accommodations were too costly, would
require substantial changes, would be disruptive, or would
fundamentally alter the nature or operation of the business;
that applicant with a disability cannot perform the selection
procedure without the accommodation, and;
• That the applicant with a disability was unwilling or unable to
assume the cost where the cost was the cause of the undue
hardship.
49
Review Accommodations for the Disabled
It is an Americans with Disabilities Act
(ADA) violation if the application and
interviewing sites are not accessible to
the disabled unless it would be an undue
hardship to make them accessible.
50
Review the Process
AAEO Card Data
When the selection process is over, you
should quantify the applicant flow data
and the selection data by protected class
status and periodically review the results.
51
THE RECRUITMENT PROCESS
There are a number of ways in which employers locate
job applicants. While none of the following methods are
prohibited per se, care should be taken not to rely too
heavily on any one method, as the recruitment process
might tend to favor younger workers over older workers,
or one gender, ethnic group or racial group to the
exclusion of others. There is no requirement that
employers advertise all job openings, rather than hire
based upon word of mouth or walk in applicants.
However, employers face problems when this type of
recruitment results in an unbalanced workforce.
52
Recruitment: Walk Ins
Some employers advertise their job openings only
at their places of business, and only accept
applications there. This could be discriminatory
because it depends on your location and workforce.
If your location is in an all-white neighborhood, nonwhites are likely to be deterred from applying. If the
employer is a restaurant or retail store catering to
the young, older people are likely to be deterred
from applying, because they will believe that they
will not be hired if they are not white, female or
young.
53
Recruitment: Word of Mouth
This could be discriminatory because it depends on
your workforce. If that workforce is, for example,
almost entirely white, male or young, then word of
mouth referrals will only reinforce the non-diverse
nature of the workforce and discriminate against
persons who are not white, male or young.
54
Recruitment: Referral Fees and Bonuses
Some employers offer finder’s fees to their
employees (for example, paying $200 to an
employee who refers another person for
employment, and the new employee works for the
employer for at least three months). This can cause
the same problems as word of mouth referrals if
your workforce is non-diverse.
55
Recruitment: Employment Agencies
Some employers rely on employment agencies to screen
employees. This also can cause problems if employers do not
make it clear that the agencies should observe the law.
•
In one case investigated by the EEOC, a Fortune 500 corporation
hired an employment agency to find suitable candidates for a
corporate “Manager of Cultural Diversity.” Allegedly, the
corporation stated a preference for a non-white female. The
agency called an EEOC District Office, and encouraged EEOC
investigators to apply. However, it told a white male investigator
that the corporation would not be interested in a white male, and
deterred him from applying. This was found to be a Title VII
violation by the employment agency.
•
Employers who knowingly allow employment agencies to engage
in discriminatory activities on their behalf have themselves
violated the law.
56
CHECKING REFERENCES
Even though a reference check often will not do anything more than
to confirm job title, salary and length of employment, the information
obtained can be useful. Do not ask pre-offer reference questions that
would be unlawful to ask the candidate directly. Examples:
•
Does the candidate have any children under the age of 18?
•
Does the candidate have any disabilities?
•
How old is the candidate?
•
Has the candidate ever filed a discrimination charge with any local,
state or federal agency? (This would constitute unlawful retaliation,
even if you are not the employer who was the subject of the charge.)
•
Has the candidate every filed a worker’s compensation claim?
57
HIRING
Special ADA considerations
The ADA distinguishes between the pre-offer and post-offer
stages of the hiring process in terms of what is permissible to
require of an applicant. Under the ADA, employers can test
applicants during the selection process, but cannot subject
them to medical examinations or disability related inquires
before making job offers.
• Employers may use any kind of test to determine job
qualifications; however, if a test screens or tends to screen out
an individual with a disability or a class of individuals on the
basis of disability, it must be job related and consistent with
business necessity.
58
HIRING
This applies to all tests including (but not limited to):
• Aptitude tests;
• Tests of knowledge and skill;
• Intelligence tests;
• Agility test, and
• Job demonstrations.
59
HIRING
Even if a test is job-related and justified by business necessity, the
employer must make a reasonable accommodation, if needed. For
example, upon request, test sites must be accessible to people who
have mobility disabilities. The ADA also has a specific requirement
for accommodation in testing.
Employers cannot subject applicants to medical examinations during
the “pre-offer” stage of the selection process.
Medical examinations may be required after a job offer is made,
provided that the employer requires such examinations or inquiry for
all entering employees in a particular job category, not merely
individuals with disabilities or those whom the employer believes may
have a disability. For example, an examination can be given to all
employees in physical labor jobs, but not to employees entering
clerical jobs.
60
HIRING
A post-offer medical examination may be required, without a
showing of business necessity.
The employer at the post-offer stage of the employment
process may require documentation or verification of the need
for reasonable accommodation to perform the essential
functions of the position.
If, based on a post-offer medical examination, the employer
decides to withdraw a job offer and not employ a person, the
employer must be able to show that:
61
HIRING
The reasons for the exclusion are job-related and consistent
with business necessity.
Example: A medical examination reveals an impairment that
would require the individual’s frequent lengthy absence from
work for medical treatment, and the job requires daily
availability for the next three months. In this situation, the
individual is not able to perform the essential functions of the
job, and no accommodation is possible.
62
HIRING
The person is being excluded to avoid a “direct threat” to
health or safety of the applicant or other employees and that
no reasonable accommodation would enable this person to
perform the essential job functions without posing a “direct
threat” or that such an accommodation would cause undue
hardship.
The results of a medical examination may not be used to
disqualify persons currently able to perform essential job
functions because of unsubstantiated speculation about future
risk.
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HIRING
Example: An individual who has an abnormal back x-ray may
not be disqualified from a job that requires heavy lifting
because of the fear that s/he will be more likely to injure her/
his back or cause higher worker’s compensation or health
insurance costs.
However, where there is documentation that this individual
has seriously injured and re-injured his/her back in a similar
job, and the back condition has been further aggravated by
each injury, and if there is not reasonable accommodation that
would eliminate the risk of re-injury or reduce it below the
“direct threat” level, an employer would be justified in rejecting
an individual for this position.
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HIRING
If an employer withdraws a job offer based on a direct threat to the
health and safety of the applicants or other employees, it must be
prepared to demonstrate:
•
A significant current risk of substantial harm (not a speculative or
remote risk);
•
The specific risk must be identified;
•
The risk must be documented by objective medical or other factual
evidence regarding the particular individual;
•
Even if a genuine significant risk of substantial harm exists, the
employer must consider whether a reasonable accommodation can
eliminate or reduce it below the level of a “direct threat.”
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HIRING
Can I Test Applicants for Use of Illegal Drugs?
Non-discriminatory application. As with all other preemployment screening, an employer should ensure that all
applicants are subjected equally to the screening device,
whether or not they are members of a “protected class.”
However, an alcohol or drug screening test may violate Title
VII if it has an adverse impact on members of a “protected
group” by disproportionately denying them employment and is
not justified by business necessity.
Section 104 of the ADA, 42 USC 12214, allows drug testing,
and does not protect current users of illegal drugs. It may
protect alcoholics who are not currently using alcohol and
former or recovering drug addicts.
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[Employers should consult the “Uniform Guidelines on
Employee Selection Procedures” in Part 1607 of Volume 29 of
the Code of Federal Regulations and the 93 “Questions and
Answers” to clarify and provide a common interpretation of
these Uniform Guideline in Volume 44 of the Federal Register,
pages 11996—12009, March 2, 1979 (questions and answers
1—90) and Volume 45 of the Federal Register, pages
29530—39531, May 2, 1980 (questions and answers 91—
93)]. The following discussion highlights important issues
discussed in those guides.
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• What are the Uniform Guidelines?
– The Uniform Guidelines were written to help employers,
labor unions, employment agencies, and others to
determine whether these and other selection procedures
comply with the laws enforced by the EEOC, U.S.
Department of Justice, and the U.S. Office of Personnel
Management, the purpose is to have a single set of
principles (and avoid conflict between the different
agencies’ requirements) to determine the proper use of
selection procedures.
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• What selection procedures are covered by the Guidelines?
– The guidelines cover all employee selection procedures,
including hiring, retention, promotion, transfer, demotion,
dismissal and referral. The types of selection methods are not
limited to tests. They cover a full range of selection procedures
including job requirements; evaluations based on application
forms; interviews, training program performance or probationary
periods, and any other procedures. Tests include performance
tests as well as paper and pencil tests. The Guidelines also cover
procedures administered by employment agencies on behalf of
employers.
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• What do the Guidelines require?
– The Guidelines require that a selection procedure which
has an “adverse impact” on the employment opportunities
of a certain race, sex, or ethnic group be examined to
avoid a Title VII violation. They require employers to keep
such records as to be able to make such an analysis.
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• What is “adverse impact?”
– According to the Guidelines, “adverse impact” means that
a particular ethnic, racial or gender group is being
disproportionately screened out for hire, promotion, etc.
Such a selection process is unlawfully discriminatory
unless the screening process, or its components, have
been validated in accordance with the Guidelines, or
unless the employer otherwise justifies them in
accordance with federal law.
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In Connecticut v. Teal, 457 U.S. 440(1982), the Supreme
Court rejected the notion that even though an individual
component of a selection process has an adverse impact on a
group, there is not a Title VII violation if the overall selection
process does not have an adverse impact on the group (a
non-discriminatory “bottom line” concept). If at any stage an
individual is rejected due to an inappropriate selection
method, the method is unlawful, even if the process
compensates for the inappropriate selection step by ensuring
that a proportionate percentage of the group is selected. Title
VII protects persons individually, not merely groups.
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• For which groups should an employer maintain records?
– The Guidelines require employers to maintain records by sex and
the following races and ethnic groups: Blacks, Native Americans
(Including Alaskan natives), Asians (including Pacific Islanders),
Hispanic (including persons of Mexican, Puerto Rican, Cuban,
Central or South American, or other Spanish origin or culture
regardless of race), and whites other than Hispanic. The
groupings are consistent with the EEOC’s reporting requirements
for all EEO report forms. Some of these requirements are
modified for smaller employers in areas with non-diverse
populations.
– Sometimes agencies such as the OFCCP may allow the
employer to lump certain groups together, such as Blacks and
Hispanics into a “minority” category. Data kept in this way would
not necessarily comply with the Guidelines, and could result in
the EEOC finding a bookkeeping violation.
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• Which kinds of records should be kept?
– If an employer has fewer than 100 employees, the Guidelines
allow simplified record keeping. Such employers satisfy the
requirements of the Guidelines if they maintain records
showing for each year.
• The number of persons hired, promoted and terminated for
each job by sex and where appropriate by race and national
origin;
• The number of applicants for hire and promotion by sex and
where appropriate by race and national origin; and
• The selection procedures used.
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Employers with 100 or more employees need to maintain and
have available, for each job, records or other information
showing whether the total selection process for that job has an
adverse impact on any of the groups discussed above. They
must make adverse impact decisions at least annually for
each such group. Where the total selection process for a job
has an adverse impact, the employer should maintain and
have available records or other information showing which
components have an adverse impact. No employer,
regardless of size, is required to make adverse impact
determinations for race or ethnic groups which are less than
2% of the relevant labor force. Other rules apply as well.
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• Is there a quick method for determining whether an
employment selection process has an adverse impact?
The “Four-Fifths Rule” is a rule of thumb adopted by the
agencies to determine if a group has a substantially different
rate of selection, which works to their disadvantage as
members of a race, sex or ethnic group. The Rule is not a
legal definition, but a method used by federal agencies to
detect serious discrepancies in rates of hiring, promotion, or
other selection decision.
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The Four-Fifths Rule is used to compare the selection rate of particular
minority group applicants against that of the group with the highest rate of
selection. If such a comparison shows that the percentage of persons
selected from the minority applicants is less than four-fifths of the percentage
of majority group applicants selected, the selection process has an adverse
impact on the minority group. For example, if the employer hired 50% of white
applicants, but only 30% of Black applicants the interpretation under the
Guidelines is that selection process has an adverse impact upon Blacks
because the selection rate for Blacks is 60% (3/5ths) of the selection rate for
whites.
The Four-Fifths Rule is only useful to the issue of adverse impact, and does
not determine the ultimate question of unlawful discrimination. Moreover,
courts allow for proof of adverse impact based upon smaller differences as
long as they are statistically significant. If, in using the Four-Fifths Rule, the
numbers of persons and the difference in selection rates are so small that the
difference could have occurred by chance, the federal agencies will not
assume the existence of adverse impact in the absence of other evidence.
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• What if an employer has not kept records of applicants?
– If an employer does not keep data, such as applicant flow logs, in
a way that would allow a federal agency to determine if there is
an adverse impact, the agency may draw an inference of adverse
impact in the selection process from the failure to keep such
data. In addition, the EEOC can sue the employer for a record
keeping violation.
– If the employer has not kept applicant records, a federal agency
can still determine adverse impact by determining whether the
ethnic, minority or gender group in question is underrepresented.
This is done by comparing the employer’s workforce with the
availability of the group in similar jobs in the relevant labor
market.
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Where applicable, evidence can also be found by examining
the availability of the group in feeder jobs. (i.e., those positions
which naturally or generally precede entry into the position
which is being examined for under representation) in the
employers’ workforce. Information about the relevant labor
market is obtained from U.S. Census data, which is available
for numerous types of jobs in various geographical areas.
• If a selection process, such as a test, results in an adverse
impact on a protected group, the test may or may not be
justified.
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• If a selection process, such as a test, results in an
adverse impact on a protected group, the test may or
may not be justified.
– The Guidelines discuss how to determine if a selection
process is justified as a valid predictor of job success. Also
discusses whether different methods would have less of
an impact on the affected group. This is a very technical
discussion, which merits a close reading of the Guidelines.
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Equal Employment Opportunity is
THE LAW
http://www.dol.gov/esa/regs/compliance/posters/pdf/7975epos.pdf
The Equal Employment Opportunity (EEO) Poster
Every employer covered by the non-discrimination and EEO
laws is required to post on its premises the poster, "Equal
Employment Opportunity is the Law." The notice must be
posted prominently, where it can be readily seen by
employees and applicants for employment. The notice
provides information concerning the laws and procedures for
filing complaints of violations of the laws with the Office of
Federal Contract Compliance Programs (OFCCP).
81
The U.S. Equal Employment Opportunity
Commission
http://www.eeoc.gov/facts/qanda.html
Federal Laws Prohibiting Job Discrimination
Questions And Answers
82
American Association for Affirmative Action
AAAA
http://www.affirmativeaction.org/resources/index.html
AAAA Resources
Federal Laws and Regulations
Federal Enforcement Agencies
Courts and Legal Opinions
Other Civil Rights Organizations
Other Human Resources Organizations
Conflict Resolution Associations and Alternative Dispute
Resolution Organizations
83