Transcript The Employment Environment

The Employment Environment
Jody Blanke
Distinguished Professor of Computer
Information Systems and Law
Mercer 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
 Discipline
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