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 O’Leary • 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