Business Law - CSUF

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Chapter 2

Recruitment, Selection,Testing, and Termination


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The Environment of Employment Law

The Civil and Public Branches of the Law

Civil law involves private dispute

Includes property law, inheritance, family law and thelaw relating to business entities

Public law governs a persons personal rights and obligationsin relation to government

Includes criminal law, constitutional law, administrativelaw, and international law

Laws are derived from: federal and state constitutions, statutesand executive orders; local ordinances; the orders, rules, andregulations of administrative agencies; and, publisheddecisions of federal and state courts. These sources reflectthe mores, values and traditions of the governed

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The Environment of Employment Law Contd

Substantive and Procedural Law

Substantive law establishes by statute and case precedents theprinciples and definitions of rights and legal relationships

Procedural law addresses the means and methods of the legalprocess

Our study will focus on the substantive law aspects ofemployment and labor law

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Supremacy Clause of the U.S. Constitution

Checks and Balances

Legislative branch enacts laws

Executive branch enforces the law. It may create administrativeagencies to enact regulations and enforce both laws and agencyregulations.

Examples: Federal executive branch departments such as U.S. Departmentof Labor and Homeland Security.

Judicial branch interprets and applies these laws and determinesprivate disputes

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Judicial System

Adjudication: legal process by which a court or arbitrator appliesthe law to facts determined by the court, jury or arbitrator That result is binding only upon those parties to that particular dispute

Stare Decisis: lower courts must apply prior decisions of highercourts in similar cases as binding precedent once certaincommon facts between the cases has been established

Federal courts exercise two types of subject matter jurisdictionexcept matters related to constitutionality of an act of Congressor the executive branch: federal question jurisdiction: decide a dispute arising under federal law

diversity jurisdiction: amount in controversy exceeds $75,000 and all partiesto the litigation are diverse in their citizenship

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Interrelationship of Federal and State Laws

Federal and state laws are to be interpreted together and in acomplementary manner to provide the employee maximumprotection under the law n.b.: state or local law must not contradict federal law

Federal laws concerning civil rights are to be read in concertwith state and local laws Compliance with federal law may is insufficient if state or local discrimination

laws and ordinance afford broader protections or impose greater duties

State or local law may require the employer to provide additional protections notrecognized under federal law.

e.g. such laws may protect an individual from discrimination in employmentdue to marital status, sexual orientation, or personal appearance

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The Hiring Process

An employer cannot use discriminatory selection methods

The main areas of concern are

defining job qualifications and selection criteria

recruiting interviewing the applicants

references, background checks, testing and medicalexaminations

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Griggs v. Duke Power Co.(USSC (1971))

Issue: Did Duke Power Companys internal transfer policy violateTitle VII of the 1964 CRA when neither standard is related tojob performance?

Willie Griggs filed a class action lawsuit against his employer

Duke Power Company

He challenged inside transfer policy which required

employees who wanted to work in all but lowest paying jobs toobtain a minimum score on two separate aptitude tests aswell as have a high school diploma

He contended Dukes practices unlawfully discriminated

against black employees in violation of Title VII

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Griggs Contd

Duke defended practice as a business necessity for safety ofemployees and public since the work was conducted at apower plant

Duke Power maintained a practice of not requiring the highschool education for white employees

The district court dismissed Griggs claim which the court of

appeals affirmed

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Griggs Contd

Supreme Court held while nothing in the CRA precludes useof testing or measuring procedures, what Congress hasforbidden is giving these devices and mechanisms controllingforce unless they are demonstrably a reasonable measure ofjob performance

The Court concluded that what Congress has commanded isthat any tests used must measure the person for the job andnot the person in the abstract, and as such reversed the

decision of the court of appeals

Ethics: What should be required of a business to demonstratethat such tests are reasonably related to the position for

which the test is required?

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Dothard v. Rawlinson(USSC (1977))

Issue: Could an employer screen applicants based upon theirheight and weight if it has a disparate impact upon women?

Dianne Rawlinson sought employment with the AlabamaBoard of Corrections as a prison guard, called in Alabama acorrectional counselor

At the time of application Rawlinson was a 22-year old collegegraduate whose major course of study was correctional

psychology

Rawlinson was refused employment because she failed tomeet the minimum 120-pound weight requirement

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Dothard Contd

Rawlinson sued alleging she had been denied employmentbecause of her sex in violation of federal law

A three-judge federal district court ruled in Rawlinsons favor

The Board of Corrections for the state of Alabama appealedto the U.S. Supreme Court, which granted certiorari

Supreme Court found that while height and weight standardscould be a business necessity, the employer failed toestablish that fact

Due to the employer failing to establish business necessity,

the court ruled in favor of DothardEthics: Should we consider the effect upon the prisoners privacy

rights when they are searched by guards of the opposite sex?

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Defining Job Qualifications and Selection

Criteria

Immigration Reform and Control Act of 1986

An employer cannot discriminate on the grounds of nationalorigin, lack of United States citizenship, status as an alienlawfully admitted to the United States, or status as a refugee

Age Discrimination in Employment Act of 1967 Employers cannot use age as a hiring criterion unless there is a

bona fide business purpose

Employers cannot have grooming, weight, and/or heightstandards unless they can prove it to be a business necessity

Height and weight standards may have a disparate impact onwomen

Grooming standards may have a disparate impact on AfricanAmerican men suffering frompseudofolliculitis barbae

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Defining Job Qualifications and Selection

Criteria Contd

Discriminating against rehabilitated drug and alcohol abusersor physical requirements would violate Americans withDisabilities Act

Veterans or active duty military status may be taken intoaccount as a special preference

Applicants not fluent in English cannot be discriminated

against unless those communication skills are a businessnecessity

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Recruiting and Interviewing

An employer cannot print or publish an advertisement for ajob that indicates a preference based on race, color, religion,sex, or national origin

None of these, along with education requirements, can beused as a basis for hiring unless there is a business necessityfor the job

Word of mouth and nepotism aprima facie case of disparate treatment can be established through statistical

evidence coupled with the fact that job vacancies were announced only throughword of mouth to potential applicants

Nepotism can constitute discrimination

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Recruiting and Interviewing Contd

The employer may be liable for statements made toapplicants during the recruitment process

If promises made during an interview are not upheld, the

employee can bring an action for damages for breach ofcontract or fraud against the employer

A newly hired employee under past agreement not to divulgetrade secrets to a competitor will be liable if such agreement

is broken, as will the new company if it were to act on theinformation

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Stutts v. Freeman(USCA 11th Cir. (1983))

Issue: Must an employer make reasonable accommodations inthe testing of handicapped applicants?

Joseph Stutts applied to enter an apprenticeship program forthe position of heavy equipment operator

He argued before the U.S. district court that he was anotherwise qualified handicapped individual under the

Rehabilitation Act of 1973

Stutts suffered from dyslexia

His application was denied on the basis of a low score on

the General Aptitude Test Battery

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Stutts Contd District court granted summary judgment in favor of TVA.

Stutts appealed to the Eleventh Circuit Court of Appealswhich reversed on the basis the TVA had not made areasonable accommodation in the testing of a dyslexic patient

The court held when TVA uses a test which does notaccurately reflect the abilities of a handicapped person, as amatter of law they must do more to accommodate thatindividual

Ethics: What do you think are the reasonable limitations to therequirement to make a reasonable accommodation for an

applicant or employee?

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Pre-Employment Testing and Investigations

The following types of questions can be regarded as unlawfuland can constitute discrimination

child care needs

year of graduation

clubs or social organization memberships

personal interests if they could evoke impermissible information

Employers should review local and state laws as they may

relate to prior employment inquires, credit checks and priorarrest and/or conviction records with regard to makingemployment decisions

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Pre-Employment Contd

Medical examinations cannot be required before job offer isextended and the exams must be job related

Employers must be careful that pre-employment testing is not

discriminatory in effect, however unintentional

Tests that screen for illegal use of drugs is not considered amedical test

Drug testing has limitations under the Fourth Amendment andrandom testing is almost always held wrongful by the court asan illegal search and seizure

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Albemarle Paper Co. v. Moody(USSC (1975))

Issue: What must an employer show to establish that pre-employment tests racially discriminatory in effect, not in intent,are sufficiently job related?

A group of African American workers sought an injunction tostop an employers testing practices

The testing had a disproportionate adverse impact upon theemployees and was not shown to be related to jobperformance. Supervisors opinions were heavily weighted.

Supreme Court held the employer was not able to prove job

relatedness of its testing program throughout the entirerelationship between the employer and worker

Ethics: How would you use the opinions of knowledgeablesupervisors into the promotion policies in your own company?

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Business Law - CSUF

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