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Beyond Discrimination

Beyond Discrimination. Are Fairness and Dignity Relevant In Judging Candidates?. Beyond Discrimination. Risk of inaccurate or unfair selection process?. Risk of intrusive selection process?. Smithkline Beecham Corp. v. Doe. Could you lose a job opportunity over this?.

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Beyond Discrimination

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  1. Beyond Discrimination Are Fairness and Dignity Relevant In Judging Candidates?

  2. Beyond Discrimination Risk of inaccurate or unfair selection process? Risk of intrusiveselection process?

  3. Smithkline Beecham Corp. v. Doe Could you lose a job opportunity over this?

  4. Smithkline Beecham v. DoeIn the Court of Appeals Claim v. Quaker? Claim v. Smithkline?

  5. Doe v. Quaker Oats Employee v. Employer • Contract: Was offer a contract? Can employer breach “at will” contract? • Did Doe fulfill condition of alleged contract? • Tort:Did Quaker owe a duty of care to Doe? Relevance of “at will” employment?

  6. Is Suing Smithkline the Cure?Liability for Inaccuracy? • Why is tort more likely v. SmithKline? • Could third party’s duty exceed employer’s? • Key: How was tester negligent? • CA focus: Negligently representing test accuracy? • SC focus: Failing to warnDoe about poppy seeds? Is third party liability the right prescription?

  7. Beyond Smithkline Beecham:Other Causes of Inaccuracy • Negligent performance or interpretation of test. • Negligence in chain of custody of sample or result. • Is test errornecessarily due to negligence? • How are error andnegligence proved? • Statute needed? What rule best promotes professionalism in the lab?

  8. Other Potentially Inaccurate Applicant Selection Procedures • Drug tests. • Blood tests or DNA tests. • Background checks. • “Lie detector” tests. • Personality tests. • Handwriting analysis. Does handwriting accurately predict character and ability?

  9. Employee Selection & Accuracy:Summary of Potential Issues • An unconditional contract right to the job? • Was employer negligent in testing/selecting? • Was third party negligent? • Does third party owe a dutyto applicants? • Applicants v. incumbents • Is there a relevant statute?

  10. Norman-Bloodsaw v. Lawrence Berkeley Laboratory Problems of Intrusion

  11. Intrusive Employee Selection:The Test in Norman-Bloodsaw • Likely reasons for the test? • What did employer learn? Was it accurate? • Intrusion: Did it improperly intrude on applicant privacy or personal dignity? Is your life history and future revealed by a drop of blood?

  12. Was the Intrusion Harmful?Why Are We So Private? • Fear of discrimination? • Desire for second chance? • Protection of lifestyle, beliefs, personal values? • Trauma of observation? • Risk of misuse of gathered personal information? What do applicants have to hide?

  13. Limits to Intrusion?Claims in Norman-Bloodsaw • Fourth Amendment: A reasonable expectation of privacy outweighing employer or public interest in the intrusion. • Common Law Invasion of Privacy: Unreasonable invasion,highly offensiveto reasonable person. • Title VII, ADA and teststhat ID protected traits. Is it wrong to peek?

  14. The Consent Problem: Did Applicant Know & Permit? • Consent/waiver as a limit on Fourth Amendment or common law claims. • Was consent voluntary?Applicant v. incumbent? • Issue re scope of consent. • Was there consent inNorman-Bloodsaw? If you let her draw blood, have you consented to the intrusion?

  15. Some Tests that Might Intrude On Personal Privacy Interests • Medical examination. • Lie detector test. • Drug test. • Personality test. • Invasive interview. • Background checks. • Handwriting analysis. 1960: Scientists at the Lawrence Lab test a “mind reading” machine.

  16. Employee Selection & Intrusion:Summary of Potential Issues • Fourth Amendment: Reasonable expectation of privacy? Employer/State interest in intrusion? • Common law: Unreasonableintrusion? Highly offensive? • Consent? Voluntary? Scope? • A statutory or contract right?

  17. Background Checks Is your life history an open file?

  18. Background Checks: Are They Accurate? Intrusive? • New information technology: Benefits and risks. • Risk of inaccuracy? • Risk of intrusion? • Is full consent possible? • The Fair Credit Reporting Act. The new face of background checks

  19. Criminal Background ChecksAnd the First Offender • A problem of inaccuracy. • A problem of intrusion. • A problem of public goals. • Title VII Implications. • Local laws restricting discrimination. • Fair Credit Reporting Act. Portrait of the applicant as a young man?

  20. Obabueki v. IBM Is the “first offense” forever?

  21. The Intrusion and Inaccuracy In Obabueki v. IBM • The “blot” on his record? • A contractual right to job? • Intrusion: Did he consent? • Inaccuracy: Common law negligence claim,e.g., against the third party? • Statutory protections: N.Y. discrimination law and the Fair Credit Reporting Act

  22. Statutory Discrimination Claim What Motivated Rejection? • N.Y. law on discriminationbased on criminal record. • Did IBM discriminate because of record, or because of something else? • Would discrimination necessarily be unlawful?

  23. Fair Credit Reporting Act:Does It Apply to Employment? • Consumer credit reporting agency: Regularly collectsor evaluates data for third parties for fee. • Credit report: Covered agency’s report to third party (excluding putative agency’s report about own experience with an individual). • Agencyduties v. user (e.g., employer) duties. JOB DENIED TOO?

  24. Employer Duties of Notice:15 U.S.C. §1681b(b)(2) • Notice of intent to obtain report. • Individual’s authorization. • Before taking adverse action based on report, provide copyand a statement of rights. • Did notice after deciding violate FCRA? • Did failure to reconsider violate FCRA? Will you know if employers are scanning your data?

  25. Credit Reporting Agency Duties: Certification, Care & Resolution • Obtain user’s certificate of compliance. • Quality control for research. • Limit on use of old data (but not for old convictions). • Dispute resolution process. • How might ChoicePoint have violated the law? DATA Did agency use qualified data collectors?

  26. ? ? FCRA Questions • Employer calls CreditCheck to ask about a prospective employee’s creditworthiness.√= FCRA case X = Not FCRA case • Employer calls CreditCheck to ask about one of CreditCheck’s former employees, who has filed an application with Employer.√ = FCRA case X = Not FCRA case

  27. ? ? FCRA Questions • Employer asks Yuri Nalovich to conduct urinalysis of employer’s employee. FCRA case? • Employer pays fee and checks internet “personal data” website. FCRA case? • Employer asks lawyer to investigate a sexual harassment grievance by an employee against a supervisor. FCRA case? √ = Yes X = No

  28. Problem (p. 191) : Joe Sibley And Green Valley Police Dept. • Application asks for information about arrests of parents, siblings, spouses or children. • Assurance of individualized consideration. • Sibley dismissed from training program because he failed to disclose brother’s expunged arrest/first offender conviction. • Can Sibley sue? Can anyone else sue?

  29. Answers for Joe Sibley And His Sibling

  30. Substance Abuse Tests

  31. Next! Loder v. City of Glendale Can the employer require all applicants to undergo urinalysis?

  32. Substance Abuse Tests:A Fourth Amendment Claim • Expectation of privacy? • How is test intrusive? • City’s interest in suspicionless test? • Relevance of potential inaccuracy? • Designed to safeguard applicants’ interests? The chain of custody begins

  33. Common Law ClaimsFor Private Sector Employees?

  34. Potential Sources of StatutoryProtection: State & Federal • ADA: Exemption for drug tests. • Drug-Free Workplace Act: Neither authorizing nor prohibiting drug testing. • FAA, DOT regulations retests for interstate transportemployees. • State laws (none in Texas).

  35. Polygraphs and Other Tests of Honesty The perfect job interview?

  36. The Polygraph And Other Lie Detector Devices • How does it work? • How accurate is it? • How is it intrusive? • Effect of EPPA? Private sector? Public? Party stunt or employee selection device? From party stunt to employment test

  37. ? ? EPPA Questions • An employer of bank tellers, who are trusted with large amounts of money, wants to administer a polygraph examination and will ask about theft within the last 5 years. Lawful? • A police department wants to administer a polygraph examination for prospective cadets, and will ask about drug use within the last 15 years. Lawful?

  38. ? ? EPPA Questions • Employer is missing $1,000 one day after hiring Employee. Employer wants to conduct polygraph examination of Employee. Lawful? • Employer buys $20 voice stress “honesty detector” over internet and uses it while interviewing applicants. Lawful? Now with optional cell phone connector!

  39. Karraker v. Rent-A-Center Multiple choice: (a) lawful; (b) unlawful; (c) it depends.

  40. Personality Testing: What Kind Of Person Are You Really? • Subject to EPPA? • Potential disparate impact? • Religious discrimination? • Intrusion (see Soroka)? • The claim in Karraker : Disability discrimination. What’s the right bubble for “honesty?”

  41. The Examination in Karraker:Was It a Medical Examination? • If medical, is using test in employment unlawful? • Does it matter whether Karrackers are “disabled?” • What did test measure?Aptitude? Personality? Mood? Disorder? • Specific intent v. effect of RAC’s use of test. Will this be part of your next job interview?

  42. Applying the EEOC’s TestFor Medical Examinations • Administered or interpreted by professional? • Designed to reveal health impairments? Or personality traits? • Measures performance of a task?Or physiological response to task? • Normally used in medical setting? • Medical equipment used? • Invasive?

  43. Beyond Karraker v. RAC:Is There a Place for Such Tests? • Could a personality test not be a medical examination? • Could post-hire test be “job-related” and supported by “business necessity?” • Possibility of reasonable accommodation for mood impairments? If he’s depressed, is he “disabled?”

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