The Employment Environment
Jody Blanke, Professor
Computer Information Systems and Law
Mercer University, Atlanta
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Recruitment
Common Law Misrepresentation and Fraud
Application of Regulation to Recruitment Practices
Advertisements
e.g., “recent college grads”
Word-of-mouth recruiting
EEOC v. Chicago Miniature Lamp Works, p. 113
EEOC v. Consolidated Service System, p. 116
Nepotism
Promoting from within
Neutral solicitation
2
Information Gathering and
Selection
The Application Process
The Interview
forbidden questions
Background or Reference Check
Resume fraud
e. g. ,George O’Leary
Social media
e. g. ,Facebook, LinkedIn
Potential liability for providing references
3
Information Gathering and
Selection
Negligent Hiring
“After-Acquired Evidence” Defense in Wrongful
Termination Suits
4
Testing
Legality of Eligibility Testing
e.g., intelligence tests, physical tests, eye exams
Title VII exempts professionally developed, validated employment tests of eligibility from disparate impact claims
in order to be legally validated, an employer must show that the test is job-related and consistent with business necessity
e.g., math test for a cashier
e.g., English competency exam for customer support position
5
Test Validity
Criterion-Related Validation
the test must be shown to accurately predict job performance as evidenced by the ability to do the job
e.g., a simulated exercise to predict job performance
Content Validation
the test specifically measures performance of certain position requirements
Construct Validation
examines the psychological make-up of the applicant and compares it to those traits necessary for job performance
6
Test Validity
Job-Related Requirement
In addition to validation, an employer must show that the specific trait being tested is job-related
e.g., Evans v. City of Evanston, physical agility tests for firefighter positions had a disparate impact on females, but
were rationally related to a legitimate purpose
e.g., Griggs v. Duke Power Co., intelligence tests were not shown to be related to job performance
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Test Validity
Integrity and Personality Tests
must be related to job performance
e.g., Soroka v. Dayton Hudson Corp., p. 143
Physical Ability Tests
usually a simulated task related to job performance
e.g., tests for firefighters involve dragging objects or climbing stairs
Medical Exams
are permitted post-offer, pre-employment for the purpose of ascertaining whether the employee can perform the job
8
Testing
Legality of Ineligibility Testing
e.g., drug tests, polygraphs
Federal Employee Polygraph Protection Act of 1988
because of inaccuracy, polygraphs are generally prohibited
exceptions for security service companies, controlled substances, and government employees
and for Investigation Exception, p. 148
Many states also prohibit polygraphs
9
Testing
Drug-Free Workplace Act of 1988
Applies to federal employees
National Treasury Employees Union v. Rabb, p. 154
Private Employers Have Also Implemented Drug Tests
mandatory testing
“probable cause” testing
random testing
The Genetic Information Nondiscrimination Act of
2008
10
Performance Appraisals and
Evaluations
Disparate Impact
an appraisal system with a disparate impact would be subject to high scrutiny by the courts
might by determined by “four-fifths” rule
Disparate Treatment
an appraisal system might use different criteria for a protected class
e.g., Hopkins v. Price Waterhouse
Defamation
Jensen v. Hewlett-Packard, p. 168
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