AAEO Coordinator Training Table of Contents

1. AAEO Coordinator TrainingTable of Contents Page AAEO Coordinator Training Description………….……........…………...…4 Things To Do Before Filling Job…………………………………..........…....5 Advertising…………......………………....……………………...……............8 Screening Applicants…………………………………………………………11

2. AAEO Coordinator TrainingTable of Contents Page Interviewing…………………………………………………………………….…12 Title VII……………………………………………………………………..….17 Age Discrimination in Employment Act (ADEA)……………………….….29 Equal Pay Act…………………………………………………………………31 Americans with Disabilities Act (ADA)……………………………………..33 Review Accommodations for the Disabled…………………………………….50 Review the Process (AAEO Data Card)…………..........……………………..51 The Recruitment Process…………………………………………….…………52

3. AAEO Coordinator TrainingTable of Contents Page Checking References………………………………………………………….…57 Hiring…………………………………………………………………….………...58 Adverse Impact & Applicant Flow Data Under Title VII………………….…...67 Equal Employment Opportunity—U.S. Equal Employment Opportunity Commission—Affirmative Action Links….…………………………………81

4. AAEO Coordinator Training Provides guidance on what is required in recruitment, interviewing, and selection and hiring to comply with the federal statutes outlawing employment discrimination.

5. THINGS TO DO BEFORE FILLING A JOB OPENING Before an employer advertises for a position (and ideally before an opening occurs), it should create an appropriate recruitment and selection process and make basic decisions about how to conduct the process. No amount of training or preparation can totally insulate employers from having discrimination charges filed against them but training and preparation can reduce the number of charges filed and significantly reduce an employer’s liability from a charge.

6. Job Description: Review the written job description for the position to be sure that it describes the essential functions of the position. If you have written job descriptions, review them for accuracy. To review and prepare a detailed job description, you should: • Observe the jobs; • Talk to employees who actually do the jobs; • Observe how the positions fit into the other positions in the organization; • Decide if you need to make changes in the functions or duties; • Draft descriptions based on your experience and observations; and • Use the position descriptions in the selection process.

7. Workforce Survey Look at your workforce to determine if some protected group (race, sex, national origin, religion, age, etc.) is underrepresented. NOTE: Under representation does not require an employer to hire a member of the underrepresented group.

8. Examine the methods used to solicit applicants. Decide if the methods used in the past have resulted in a diverse workforce and how you want to recruit for future openings. Will the method you choose reach all areas of the population, or are some groups excluded? If some areas or groups are excluded, you should broaden the scope of your recruitment effort.

9. Advertising or posting positions Before you advertise or post for open positions, you also should consider what you want an applicant to do to apply for the job. Some things to consider: • Should an applicant submit a resume or an application? If an application, then the form should be reviewed to ensure that it does not solicit unlawful or improper information. • Determine whether potential applicants who have disabilities can obtain applications. Be prepared to accommodate the needs of applicants with disabilities.

10. Advertising Be careful about the language that you use; it could subject you to liability if it is discriminatory. The following are examples of types of phrases which should not be placed in advertisements. • “Recent college graduate” (ADEA violation) • “0-1 years of experience” (ADEA) • “Young, energetic” (ADEA) • “hostess or waitress” (Title VII) • “Christian carpenter wanted” (Title VII)

11. Screening Applicants: Unless the applicant group is very small, you will need to screen out the less qualified applicants. • Before screening applicants, establish written criteria that are objective and relate to the requirements or qualifications for the position. • Apply the criteria consistently. • Make and keep a record of the criteria and how they were applied. • Review the results of the screening process to determine if the criteria had a disparate impact on any particular group. In one case, the Equal Employment Opportunity Commission (EEOC) sued a company which the company’s receptionist was throwing away applications from African American applicants. If you focus only on training human resource managers and interviewers, you will overlook others who could subject you to liability.

12. Prepare the Interviewers.Before you begin the interviewing, make sure that: • The persons who will do the interviewing are familiar with the questions to be asked and can be relied on to ask the prescribed questions and give objective assessments of the persons interviewed. • All persons (including receptionists, clerks, etc.) who come in contact with the applicants and interviewees are trained to deal with applicants and interviews in a polite, even-handed way. In one case, the EEOC sued a company which the company’s receptionist was throwing away applications from the African American applicants. If you focus only on training human resource managers and interviewers, you will overlook others who could subject you to liability.

13. InterviewBefore you begin interviewing, create a list of written interview questions. While not required by law, it is a good idea to: • Ask the same questions of each applicant. • Make and retain notes of each interview. • Make sure the person selected is objectively the most qualified or at least equally qualified in comparison to the criteria that you set. • Retain the records for a least one year.

14. APPLICATION AND INTERVIEWING The statues enforced by the EEOC do not specify information that may not be solicited of applicants for employment. What is important is whether the information being solicited is sought for discriminatory purposes. Nevertheless, inquires which directly or indirectly disclose the applicant’s race, color, religion, sex, national origin, or age will be closely scrutinized and may constitute evidence of discrimination. Questions that are likely to elicit information about an applicant’s disability are unlawful before the applicant has been given an offer of employment.

15. APPLICATION AND INTERVIEWING (continued) In addition, some state laws do expressly prohibit inquiries about an applicant’s race, color, religion, sex, national origin, age disability or other traits, and some states and municipalities prohibit employment discrimination based on other ground (for example, discrimination based on sexual orientation, marital status or appearance).

16. APPLICATION AND INTERVIEWING (continued) The key to lawful employment inquiries is to ask only questions that will provide information about the person’s ability to do the job, with or without reasonable accommodation. Asking questions in the following area, either on an employment application or in an interview, might subject an employer to liability, the information is used to discriminate.

17. APPLICATION AND INTERVIEWINGTitle VII • Are you available to work on weekends? Although it is perfectly reasonable to ask if an applicant can work weekends if there is a need, this question may discourage applicants of a certain religion, which prohibit working Friday nights, Saturdays or Sundays. If there is a business necessity for asking this question, the employer should make it clear that it will make a reasonable effort to accommodate the employee’s religious practices.

18. APPLICATION AND INTERVIEWINGTitle VII (continued) • Do you have children under the age of 18? How many? How old are they? What arrangements will be made for child care? Questions of this type are often used to discriminate against women. It is a violation of Title VII to require pre-employment information about child care arrangements from female applicants only, and employers cannot have different hiring policies for men and women and pre-school children. Information needed for tax or Social Security purposes can be obtained after the applicant is hired.

19. APPLICATION AND INTERVIEWINGTitle VII (continued) • Are you a United States citizen? Title VII extends coverage to both U.S. and non-citizens with respect to employment in the United States. Although Title VII does not specifically prohibit discrimination on the basis of citizenship, citizenship requirements may violate Title VII where they have the purpose or effect of discriminating on the basis of national origin. Therefore, where consideration of citizenship has the purpose or effect of discriminating against persons of a particular national origin, a person who is a lawfully immigrated alien, legally eligible to work, may not be discriminated against on the basis or his/her citizenship, except in the interest of national security or as determined under a U.S. statute or presidential executive order respecting the particular position or premises in question.

20. APPLICATION AND INTERVIEWINGTitle VII (continued) The Immigration Reform and Control Act of 1986 (“IRCA’) makes it a crime to knowingly hire an unlawful alien and requires all employers to verify the citizenship status of all job applicants before hiring them. Rather than asking the above, an employer would be better advised to ask “Can you, after being hired, verify your legal right to work in the United States?” This question must be uniformly asked and an employer cannot require actual production of work authorization until after hiring.

21. APPLICATION AND INTERVIEWINGTitle VII (continued) • Credit record? Charge accounts? Own your home? Own your furniture? Own a car? Rejection of applicants because of poor credit ratings has a disparate impact on minority groups and has been found unlawful by the Commission, unless business necessity can be shown. Inquires about an applicant’s financial status, such as bankruptcy, car ownership, rental or ownership of a house, length of residence at an address or past garnishments of wages, if used to make employment decisions, may also violate Title VII. Such inquiries also might have a disparate impact on women, because many women do not have credit history separate from their husband’s histories.

22. APPLICATION AND INTERVIEWINGTitle VII (continued) • Height? Weight? Minimum height and weight requirements are unlawful if they screen out a disproportionate number of minority-group individuals (e.g., Hispanics or Asian Americans) or women, and the employer cannot show that these standards are essential to the safe performance of the job in question. Furthermore, a court has recently ruled that morbid obesity is an impairment and may be a disability under the ADA.

23. APPLICATION AND INTERVIEWINGTitle VII (continued) • What is your maiden name? Because this question applies only to women and is not relevant to a person’s ability to perform a job, it could be used for discriminatory purposes. A permissible alternative in performing background checks is to inquire as to all names used by an applicant.

24. APPLICATION AND INTERVIEWINGTitle VII (continued) • Are you married, single or divorced? Some employers have refused to hire married women for certain jobs. For example, for many years many airlines would not permit married women to be flight attendants, though other employees could be married. The courts have declared this a Title VII violation. An employer would also violate Title VII if it refused to hire a married woman or pay her the same as a married man for the same work. Finally, an employer cannot refuse to hire a married woman because of the employer’s belief concerning morality or family responsibility.

25. APPLICATION AND INTERVIEWINGTitle VII (continued) • Are you known as Ms., Miss, or Mrs.? This is another way to ask an applicant’s sex and marital status, and such questions serve no other pre-employment purpose. • What is your spouse’s name? Where does he/she work? To the extent that this question asks for marital status, the comments on martial status apply. A spouse’s name can also be used as an indication of religion or national origin.

26. APPLICATION AND INTERVIEWINGTitle VII (continued) • Are you pregnant? Do you plan to have children? Title VII prohibits discrimination based on pregnancy, childbirth and related medical conditions. Therefore, employers should not ask questions regarding pregnancy or future childbearing plans.

27. APPLICATION AND INTERVIEWINGTitle VII (continued) • Have you been arrested for, or convicted of, any crime? Because members of some minority groups are arrested substantially more often than whites in proportion to their numbers in the population, making personnel decisions on the basis of arrest records involving no subsequent convictions has a disproportionate effect (adverse impact) on the employment opportunities of members of these groups. Thus, the use of arrest records alone as an absolute bar to employment is illegal. However, conduct which indicates unsuitability for a particular position is a basis for excluding an applicant or employee. Where it appears that the applicant or employee engaged in the conduct for which s/he was arrested and that the conduct is job related and relatively recent, exclusion from employment is justified.

28. APPLICATION AND INTERVIEWINGTitle VII (continued) It is the Commission’s position that an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks showing that they are convicted at a rate disproportionately greater than their representation in the population. However, when the employer can present more narrowly drawn statistics showing that Blacks or Hispanics are not convicted at a disproportionately greater rate, or that there is no adverse impact in their own hiring process, then no violation would occur. Other factors to be considered include (1) the nature and gravity of the offense; (2) the time that has passed since the conviction and/or completion of the sentence; and (3) the nature of the job being held or sought.

29. APPLICATION AND INTERVIEWINGAge Discrimination in Employment Act (ADEA) • How old are you? What is your date of birth? Asking older applicants to give their age might deter them from applying, and can indicate discrimination based on age. So, applications that request such information will be closely scrutinized to ensure that the information is not used to discriminate against older applicants.

30. APPLICATION AND INTERVIEWINGAge Discrimination in Employment Act (ADEA)continued • When did you graduate from high school? College? Most people graduate from high school and college around specific ages, so this information can be used to approximate an applicant’s age. A graduation date does not indicate a person’s ability to do a job, and employers should not ask for such information on applications or during interviews. If such information is needed for legitimate business purposes, it can be obtained after a conditional job offer is made.

31. APPLICATION AND INTERVIEWINGEqual Pay Act • How much money does your husband make? How much salary do you need? Some employers ask these questions if they know that a woman is married, the assumption being that she should work for less money because her husband is the “primary breadwinner.” One woman who was asked this impermissible question responded: “The question is: how much am I worth?”

32. APPLICATION AND INTERVIEWINGEqual Pay Act • What is the lowest salary you will accept? Women generally have been relegated to lower paying jobs than men, and paid less than men for the same work. As a result, a woman might be willing to work for less pay than a man would find acceptable. However, it is unlawful to pay a woman less than a man because of community wage patterns, which are based on discrimination. Men and women performing substantially equal work should be paid equal wages.

33. APPLICATION AND INTERVIEWINGAmericans with Disabilities Act (ADA) • Note: While this section concerns the interview process as it is regulated by the ADA. The rules and regulations pertaining to interviewing apply equally to employment applications. As noted above, the ADA expressly makes it unlawful to make any pre-offer inquiry about an applicant’s disability. Although inquiring about a person’s minority status or age may result in unlawful discrimination if subsequent employment decisions are based on the information obtained, under ADA merely making the inquiry is unlawful.

34. APPLICATION AND INTERVIEWINGAmericans with Disabilities Act (ADA) During the interview process, the interviewer should take special care to avoid the following types of inquiries: • Do you have a disability? • What is the nature or severity of your disability? (Or, the nature and severity of any conditions or diseases for which an applicant has been treated.) Instead, ask an applicant whether s/he can perform the duties of the job with or without accommodation or give a test (but only if all applicants are asked the same question or given the same test).

35. APPLICATION AND INTERVIEWINGAmericans with Disabilities Act (ADA) NOTE: An employer may ask about the individual’s ability to perform both essential and marginal functions of the job. But an employer cannot screen out because of the inability to perform marginal functions. If an individual has a known disability that may interfere with performance, the employer may ask that person to describe or demonstrate performance, even though this is not asked of other applicants.

36. APPLICATION AND INTERVIEWINGAmericans with Disabilities Act (ADA) • Have you ever been hospitalized? • Have you ever been treated for a mental illness? • Are any of your friends or family disabled? The ADA forbids discrimination based on a person’s relationship or association with a disabled person. Example: Suppose that the interviewer was aware that the applicant’s spouse had the HIV virus. It would be unlawful to base an employment decision on that knowledge.

37. APPLICATION AND INTERVIEWINGAmericans with Disabilities Act (ADA) • An applicant’s past record of a disability— It would be unlawful to question the applicant regarding his record of addiction or the nature of his treatment. In addition, it would be unlawful to decide not to hire the applicant based on that knowledge. • Have you ever filed a worker’s compensation claim or suffered a disabling injury in a previous job? This is unlawful because it is likely to reveal information about a person’s disability prior to giving that person a job offer.

38. APPLICATION AND INTERVIEWINGAmericans with Disabilities Act (ADA) • The EEOC has recently determined that obesity is clearly an impairment if the person has severe obesity, which has been defined as body weight more than 100% over the norm, see the Merck Manual of Diagnosis and Therapy 981 (Robert Berkow ed., 16th ed. 1992), is clearly an impairment.

39. APPLICATION AND INTERVIEWINGAmericans with Disabilities Act (ADA) In addition, a person with obesity may have an underlying or resultant physiological disorder, such as hypertension or a thyroid disorder. A physiological disorder is an impairment. See 29 C.F.R. 1630.2(h). Being overweight, in and of itself, generally is not an impairment. See 29. C.F.R. pt. 1630 app. 1630.2(h) (noting that weight that is “within ‘normal’ range and not the result of physiological disorder” is not an impairment).

40. APPLICATION AND INTERVIEWINGAmericans with Disabilities Act (ADA) • Will you need time off for medical treatments or for other reasons associated with your disability? At the pre-offer stage, the information sought is not likely to be relevant to whether a person is able to perform the essential functions of the job with or without reasonable accommodation. Even if it is relevant it still cannot be asked in the pre-offer stage. The interviewer or selecting official also cannot ask about an applicant’s disability during pre-offer reference checks. In addition, because the ADA, makes it unlawful to discriminate on the basis of disability as the result of contractual or other agreement, it is unlawful for an outside firm making selection decisions, interviewing candidates or making pre-offer reference checks on behalf of the employer to make prohibited inquiries.

41. APPLICATION AND INTERVIEWINGAmericans with Disabilities Act (ADA) An employer may ask: • All applicants (whether with or without a disability) whether they can perform the duties of the job, with or without accommodation. • If the applicant has the necessary ability and experience in relation to specific duties associated with the job functions. • If the applicant has the necessary licenses, diplomas, training, certificates, or other qualifications required. • The applicant to describe or demonstrate how s/he will perform job functions, if this is required of everyone, regardless of disability or if the applicant has a known disability that could interfere with performance of job functions.

42. APPLICATION AND INTERVIEWINGAmericans with Disabilities Act (ADA) If a demonstration is requested, the employer must be ready to provide a necessary accommodation to allow a person with a disability to perform the demonstration or reschedule the demonstration to allow the employer to provide the necessary reasonable accommodation. • If the applicant can meet the requirements of the employer’s work hours, overtime work, and attendance policies. • The applicant’s previous employers about the job functions and tasks performed by the applicant, the quantity and quality of the work performed, and how the work was performed. It may ask about the applicant’s attendance record and other job-related questions that are not likely to disclose disability.

43. APPLICATION AND INTERVIEWINGAmericans with Disabilities Act (ADA) Notwithstanding the prohibitions stated above, an employer may: • Test the ability of all applicants (with or without disabilities) to perform the duties of the job. • Test applicants for abuse of unlawful drugs (former drug addicts or alcoholics may qualify as individuals with disabilities entitled to necessary reasonable accommodation). • Select the best qualified candidate. (However, neither a candidate’s need for reasonable accommodation nor his inability can be factored in to decide which candidate is best qualified.) • Refuse to hire someone whose disability poses a direct threat to the health or safety of an individual or others, if there is a significant risk of substantial harm and the risk cannot be mitigated through reasonable accommodation. (See the discussion below.)

44. APPLICATION AND INTERVIEWINGAmericans with Disabilities Act (ADA) Reasonable accommodations during the application and recruitment process. Most employers are aware that reasonable accommodations be made for disabled individuals who, once hired, can perform the essential functions of their jobs with such accommodations. Employers should also be aware of the requirement that reasonable accommodations be given to individuals who need them in order to successfully complete applications. (Note: This outline only deals with the hiring process, and not all of the issues of reasonable accommodation in employment.

45. APPLICATION AND INTERVIEWINGAmericans with Disabilities Act (ADA) The ADA requires that tests be given to people with disabilities that have impaired sensory speaking or manual skills in a format the does not require use of the impaired skill, unless the test is designed to measure that skill. Some examples of accommodation are: • Substituting a written test for an oral test (or written instructions for oral instructions) for people with disabilities that have impaired speaking or hearing skills. • Administrating a test in large print, in Braille, by a reader, or on a computer for people with visual or other reading disabilities.

46. APPLICATION AND INTERVIEWINGAmericans with Disabilities Act (ADA) • Providing the servers of a sign language interpreter for applicants with impaired hearing during the interview and testing procedures. • Allowing people with visual or learning disabilities or people with disabilities that limit the use of their hands to record test answers by means of a tape recorder, dictation machine or computer. • Providing extra time to complete a test for people with certain learning disabilities. • Simplifying test language for people who have limited language skills because of a disability.

47. APPLICATION AND INTERVIEWINGAmericans with Disabilities Act (ADA) • Scheduling rest breaks for people with certain mental or other disabilities that may require such breaks. • Allowing a person with a mental disability whom cannot perform well when there are distractions to take a test in a separate room. • Where it is not possible to test an applicant with a disability in an alternative format, an employer may be required, as a reasonable accommodation, to evaluate the skill or ability being tested through some other means, such as an interview, education, work experience, licenses or certifications or a job demonstration.

48. APPLICATION AND INTERVIEWINGAmericans with Disabilities Act (ADA) Generally, an employer is only required to provide an accommodation if it knows, before administering a test, that an accommodation will be needed, it is suggested that the employer inform applicants, in advance, of any tests that will be administered as part of the application process that they may request an accommodation, if needed. The employer may require that an applicant with a disability request an accommodation within a specific time period before administration of the test. The employer may require the applicant with a disability to document the need for an accommodation. If the only possible accommodation would cause undue hardship to the employer, the employer should document:

49. APPLICATION AND INTERVIEWINGAmericans with Disabilities Act (ADA) • All unsuccessful efforts to find more feasible alternatives; and • That the necessary accommodations were too costly, would require substantial changes, would be disruptive, or would fundamentally alter the nature or operation of the business; that applicant with a disability cannot perform the selection procedure without the accommodation, and; • That the applicant with a disability was unwilling or unable to assume the cost where the cost was the cause of the undue hardship.

50. Review Accommodations for the Disabled It is an Americans with Disabilities Act (ADA) violation if the application and interviewing sites are not accessible to the disabled unless it would be an undue hardship to make them accessible.