Legal Issues in Employee Selection

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Legal Issues in Employee Selection

• Discrimination legal before 1963
• Employment at will
• Modified by contract and law
• Just cause
• Legislation affecting employment
• Equal Pay Act 1963 (sex discrimination)
• equal skill, effort, and responsibility,
  performed under similar circumstances
• Civil Rights Act (Title VII) 1964
• hiring, compensation, terms, conditions, and
  privileges of employment
• race, color, religion, national origin, sex
• exemptions

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• EEOC (Equal Employment Opportunity Commission
• Uniform Guidelines on Employee Selection
  Procedures 1978
• Griggs v. Duke Power (1971)
• Disparate impact versus disparate treatment
• Executive Order 11246 1965
• holders of federal contracts
• affirmative action
• Age Discrimination in Employment Act 1967
• Americans with Disabilities Act 1990
• Family and Medical Leave Act 1993

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Judicial Precedence

• U.S. Constitution
• Federal Laws
• State law
• Can expand but not diminish Federal law
• Executive orders
• Federal case law (interprets Constitution and
  federal laws)
• U.S. Supreme Court
• Circuit Courts of Appeal
• U.S. District Courts
• Federal administrative guidelines

4
Potential Legal Problems

• Disparate treatment (intentional discrimination)
• Disparate impact (adverse impact)
• Invasion of privacy
• Illegal search

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Employee Complaint Process

• Alleged discriminatory act
• Internal resolution process
• Internal investigation
• Mediation
• Arbitration
• Nonbinding
• Binding
• Mandatory
• Essential to have a formal policy with appeal
  procedure
• External resolution process
• EEOC
• Law suit

6
EEOC Complaint Process

• Alleged discriminatory act
• Complaint filed
• Investigation
• Reasonable cause not found
• Reasonable cause found
• Attempt to reach agreement
• No agreement EEOC can file suit

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Legal process in employment law
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Legality of employment decision

• Employment practicesaffect employee
• Protected classes
• Race
• Color
• Sex
• National origin
• Language
• Religion
• Days of worship
• Practices
• Attire
• Age

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• Disability
• Impairment
• Essential functions
• Reasonable accommodations
• Pregnancy
• Vietnam veteran status
• BFOQbona fide occupational qualification
• Expanded definition of protected class

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Federally Protected ClassesExercise 3-1
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(No Transcript)
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Adverse impact

• 4/5 rule
• Based on applicant pool

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Disparate treatment or impact

• Disparate treatment
• Intentional
• Prima facie
• Party injured by
• Disparate Impact
• Burden of proof on employer

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Employment practice job related or exempt?

• BFOQ
• Valid testing procedure
• Examined alternatives
• Exceptions
• Bona fide seniority system
• National security
• Veterans preference rights

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Does requirement directly refer to member of
federally protected class?
yes
BFOQ?
no
Probably Illegal
no
yes
Has case law, state law, or local law expanded
definition of protected class?
yes
no
no
Probably Legal
Does requirement have adverse impact?
yes
yes
Probably Illegal
Is requirement subterfuge for discrimination?
no
Probably Illegal
no
Is requirement job related?
yes
Probably Illegal
no
Were alternatives with less adverse impact
considered?
yes
Probably Legal
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Affirmative Action

• Strategies
• Intentional recruitment of minority applicants
• Removal of obstacles
• Preferential hiring and promotion of minorities
• Reasons
• Government regulation
• Court order
• Voluntary
• Consent decree
• Desire to be a good citizen

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Legality of Preferential Hiring

• History of discrimination
• Numeric disparity
• Beneficiaries of plan
• Population used to set goals
• Qualified work force
• Impact on non minorities
• End point

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No
Was there a history of discrimination?
Plan is illegal
Yes
Yes
Does the plan only benefit actual victims of
discrimination?
Plan is Legal
No
What population was used to establish goals?
Area
Plan is illegal
Qualified Work Force
Did plan trammel the rights of nonminorities?
Yes
Plan is illegal
No
Is there an ending point to the plan?
No
Plan is illegal
Yes
Plan is Legal
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Privacy

• Drug testing
• Public versus private organizations
• Applicants versus employees
• Searches
• Psychological tests
• Electronic surveillance

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Harassment

• Quid pro quo
• Single incident
• Always liable
• Hostile environment
• Policy in place
• Respond to incidents

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Family and Medical Leave Act

• Serious health conditions
• Right to return