The Employment Environment

Jody BlankeDistinguished Professor of Computer Information Systems and LawMercer University

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. 143 EEOC v. Consolidated Service System, p. 195

Promoting from within Neutral solicitation

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Information Gathering and Selection

The Application Process The Interview

forbidden questions, e.g., p. 149

Background or Reference Check Resume fraud

e. g. ,George O’Leary Social media

e. g. ,Facebook, LinkedIn Potential liability for providing references

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Information Gathering and Selection

Negligent Hiring Employer strategies p. 156-57 Tips for employer protection p. 158

“After-Acquired Evidence” Defense in Wrongful Termination Suits

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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

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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

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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

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

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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, p. 169

Many states also prohibit polygraphs

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Testing

Drug-Free Workplace Act of 1988 Applies to federal employees National Treasury Employees Union v. Rabb, p. 197

The Genetic Information Nondiscrimination Act of 2008

Private Employers Have Also Implemented Drug Tests mandatory testing “probable cause” testing random testing

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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, p. 181

Defamation Negligent Performance Evaluations

e.g., Rowe v. General Motors, p. 183-84

Discipline11