Transcript Litigation - Mercer University

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
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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
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Information Gathering and
Selection
 Negligent Hiring
 “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

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
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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

and for Investigation Exception, p. 148
 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. 154
 Private Employers Have Also Implemented Drug Tests
 mandatory testing
 “probable cause” testing
 random testing
 The Genetic Information Nondiscrimination Act of
2008
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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
 Defamation
 Jensen v. Hewlett-Packard, p. 168
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