The Employment Environment

1
The Employment Environment

• Jody Blanke, Professor
• Computer Information Systems and Law
• Mercer University, Atlanta

2
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

3
Information Gathering and Selection

• The Application Process
• The Interview
• forbidden questions
• Background or Reference Check
• Resume fraud
• e. g. ,George OLeary
• Social media
• e. g. ,Facebook, LinkedIn
• Potential liability for providing references

4
Information Gathering and Selection

• Negligent Hiring
• After-Acquired Evidence Defense in Wrongful
  Termination Suits

5
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

6
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

7
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

8
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

9
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

10
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

11
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