Kristine E. Kwong, Esq.
k.kwong@mpglaw.com

 Purpose of a Job Description
 Communication of Duties
 Sets Expectations of Work
 Aids Employer in Recruitment
 Informs Employee of Duties

 Key Elements
 Essential Duties
 Physical and/or Certification Requirements
 Education
 Compensation

 Qualifications for Position
 Physical
 Educational
 Skill-based
 Combination of the above

 Minimum Qualifications
 Lowest Threshold to be Considered for Candidacy
 Used as a Tool to Filter Out Applicants Not Capable of
Performing the Essential Job Functions

JOB DESCRIPTIONS COLLIDING WITH
THE LAW
 Title VII of the 1964 Civil Rights Act
 California Fair Employment & Housing Act
 Prohibits Unlawful Employment Practices
 Failing or Refusing to Hire
 Discharging
 Discriminating with Respect to Compensation, Terms,
Conditions or Privileges of Employment
 Failure to Promote

UNLAWFUL EMPLOYMENT PRACTICES
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Race
Color
Religion
National Origin
Sex
Sexual Orientation
Sexual Identity
Age

WAYS OF PROVING DISCRIMINATION
 Direct Evidence
 Indirect Evidence
 Disparate Impact

WAYS OF PROVING DISCRIMINATION
 Direct Evidence
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Discriminatory Intent
Adverse Employment Action
 Indirect Evidence
 No Smoking Gun Evidence

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What is the Disparate Impact Theory?
Facially Neutral Employment Practice Deemed Discriminatory
Without Evidence of the Employer’s Subjective Intent to
Discriminate
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Discriminatory Intent is Not Required
Intent to Avoid Disparate Impact is Viewed as the Intent to
Discriminate
Disregarding the Results of a Valid Job Selection Process (i.e., Performance
Tests) for Failure to Yield a Racially Diverse Group of Candidates is Intentional
Discrimination Against the Successful Candidates Based on Their Race
May Disregard If You Can Show That the Test Was Deficient and That
Discarding the Results is Needed To Avoid Violating Disparate Impact
Provision

 Subjective Employment Criteria (i.e., Personality)
 Objective or Standardized Tests

• Examples of Objective Criteria that May Have
Discriminatory Impact:
• Written Aptitude Tests
• Written Tests of Verbal Skills
• Height and Weight Requirements
• Rules Against Employing Drug Addicts

 Examples of Subjective Criteria That May Have
Discriminatory Impact:
 Hiring Decisions Based on Personal Knowledge of Candidates or
Recommendations
 Decision to Fire Individuals Who are Said Not to Get Along with
Co-workers
 Decision Not to Rehire Individual Who Engaged in Criminal
Acts Against the Employer or Are Laid Off

 The Plaintiff Must Identify Each Personnel Practice Which is
Neutral on Its Face as Having Caused the Disparate Impact
 Plaintiffs Cannot Attack Overall Decision-Making Process
 Plaintiffs Must Identify the Particular Element or Practice
Within That Process Causing Adverse Impact

 Equitable Relief
 Injunctive Relief

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Plaintiff’s Burden of Proof
An Employment Practice Policy or Qualification
Significant Adverse Effect on a Protected Class
The Impact of the Minimum Qualification with Respect to the Terms, Conditions or Privileges of Employment of the
Protected Class
The Employee Population in General is not Affected by the
Policy to the Same Degree

 Employer’s Defense Burden
 Attack Plaintiff’s Statistical Proof
 The Minimum Qualification or Practice is Job-Related and
Consistent with Business Necessity

 Plaintiff’s Response to Defense
 Business Necessity
 Plaintiff Must Show an Alternate Employment Practice (Other
Tests, Selection Device, Minimum Qualification) without a
Discriminatory Effect would Also Serve the Employer’s
Legitimate Interests and the Employer Refuses to Adopt It
 Plaintiff Must Show that Another Test or Selection Device would also Serve the Employer’s Legitimate Interests and Have a
Lesser Adverse Impact Upon a Protected Class

 Test Validation
 Factors Court Consider in Determining if a Test has been
Validated:
 Testimony by Experts in the Field of Test Validation
 Guidelines Established by the EEOC Regarding Job Relatedness

 Factors to Consider to Determine Validity of an Employment
Test or Minimum Qualification
 Suitable Job Analysis
 Reasonable Competence in Constructing the Test
 Content of the Test is Related to Content of the Job
 Content of the Test is Representative of the Content of the Job

 Defense Response to Challenge to Tests:
 Employer must Show the Test is Related to Safe and Efficient
Job Performance and was a Business Necessity (a Test’s
Required Skills and Physical Requirements of a Specific Job)
 Plaintiff Can Still Prevail by Showing There is a Less
Discriminatory Alternative

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Criminal Records May Have Disproportionate Impact on
People of Color but Does Not Violate Title VII where
Business Necessity is Shown
California Law:
 Prohibits Employer Inquiries About Arrests and Detentions That
Did Not Result in Convictions
Use of Statistical Evidence as Proof:
 Plaintiff will Try to Use Statistical Disparities to Show Disparate
Impact
 Disparity Must be Large Enough That It Is Unlikely to Have
Occurred at Random

 Employer Must Show Job Qualification Genuinely Predicts
Which Successful Job Performance or Important Elements of
Work Behavior That Comprise the Job in Question
 Plaintiff Has the Burden of Producing an Alternative
Qualification that Meets the Employer’s Legitimate Business
Needs

 Three Categories Disparate Impact Theory Has Been
Applied:
 Scored Tests
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Non-Scored Objective Criteria
Education, Experience, Height & Weight Restrictions, Criminal
Records, Credit Records
 Subjective Criteria:
 Oral Interviews
 Supervisor Recommendations