Chapter 2

Recruitment, Selection, Testing, and Termination

The Environment of Employment Law

The Civil and Public Branches of the Law

Civil law involves private dispute Includes property law, inheritance, family law and the law relating to business entities Public law governs a persons personal rights and obligations in relation to government Includes criminal law, constitutional law, administrative law, and international law Laws are derived from: federal and state constitutions, statutes and executive orders; local ordinances; the orders, rules, and regulations of administrative agencies; and, published decisions of federal and state courts. These sources reflect the mores, values and traditions of the governed
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The Environment of Employment Law Contd

Substantive and Procedural Law

Substantive law establishes by statute and case precedents the principles and definitions of rights and legal relationships
Procedural law addresses the means and methods of the legal process Our study will focus on the substantive law aspects of employment and labor law

The Environment of Employment Law Contd

Supremacy Clause of the U.S. Constitution Checks and Balances

Legislative branch enacts laws Executive branch enforces the law. It may create administrative agencies to enact regulations and enforce both laws and agency regulations.

Examples: Federal executive branch departments such as U.S. Department of Labor and Homeland Security.

Judicial branch interprets and applies these laws and determines private disputes

The Environment of Employment Law Contd

Judicial System

Adjudication: legal process by which a court or arbitrator applies the law to facts determined by the court, jury or arbitrator

That result is binding only upon those parties to that particular dispute

Stare Decisis: lower courts must apply prior decisions of higher courts in similar cases as binding precedent once certain common facts between the cases has been established Federal courts exercise two types of subject matter jurisdiction except matters related to constitutionality of an act of Congress or the executive branch:

federal question jurisdiction: decide a dispute arising under federal law diversity jurisdiction: amount in controversy exceeds $75,000 and all parties to the litigation are diverse in their citizenship
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Interrelationship of Federal and State Laws

Federal and state laws are to be interpreted together and in a complementary manner to provide the employee maximum protection under the law

n.b.: state or local law must not contradict federal law

Federal laws concerning civil rights are to be read in concert with state and local laws

Compliance with federal law may is insufficient if state or local discrimination laws and ordinance afford broader protections or impose greater duties State or local law may require the employer to provide additional protections not recognized under federal law.

e.g. such laws may protect an individual from discrimination in employment due to marital status, sexual orientation, or personal appearance

The Hiring Process

An employer cannot use discriminatory selection methods The main areas of concern are

defining job qualifications and selection criteria recruiting interviewing the applicants references, background checks, testing and medical examinations

Griggs v. Duke Power Co.

(USSC (1971))

Issue: Did Duke Power Companys internal transfer policy violate Title VII of the 1964 CRA when neither standard is related to job performance? Willie Griggs filed a class action lawsuit against his employer Duke Power Company

He challenged inside transfer policy which required employees who wanted to work in all but lowest paying jobs to obtain a minimum score on two separate aptitude tests as well as have a high school diploma He contended Dukes practices unlawfully discriminated against black employees in violation of Title VII
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Griggs Contd

Duke defended practice as a business necessity for safety of employees and public since the work was conducted at a power plant Duke Power maintained a practice of not requiring the high school education for white employees The district court dismissed Griggs claim which the court of appeals affirmed

Griggs Contd

Supreme Court held while nothing in the CRA precludes use of testing or measuring procedures, what Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance

The Court concluded that what Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract, and as such reversed the decision of the court of appeals

Ethics: What should be required of a business to demonstrate that such tests are reasonably related to the position for which the test is required?
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Dothard v. Rawlinson
(USSC (1977))

Issue: Could an employer screen applicants based upon their height and weight if it has a disparate impact upon women?

Dianne Rawlinson sought employment with the Alabama Board of Corrections as a prison guard, called in Alabama a correctional counselor At the time of application Rawlinson was a 22-year old college graduate whose major course of study was correctional psychology Rawlinson was refused employment because she failed to meet the minimum 120-pound weight requirement
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Dothard Contd
Rawlinson sued alleging she had been denied employment because of her sex in violation of federal law A three-judge federal district court ruled in Rawlinsons favor The Board of Corrections for the state of Alabama appealed to the U.S. Supreme Court, which granted certiorari Supreme Court found that while height and weight standards could be a business necessity, the employer failed to establish that fact Due to the employer failing to establish business necessity, the court ruled in favor of Dothard Ethics: Should we consider the effect upon the prisoners privacy rights when they are searched by guards of the opposite sex?

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Defining Job Qualifications and Selection Criteria

Immigration Reform and Control Act of 1986

An employer cannot discriminate on the grounds of national origin, lack of United States citizenship, status as an alien lawfully admitted to the United States, or status as a refugee

Age Discrimination in Employment Act of 1967

Employers cannot use age as a hiring criterion unless there is a bona fide business purpose

Employers cannot have grooming, weight, and/or height standards unless they can prove it to be a business necessity

Height and weight standards may have a disparate impact on women Grooming standards may have a disparate impact on African American men suffering from pseudofolliculitis barbae
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Defining Job Qualifications and Selection Criteria Contd

Discriminating against rehabilitated drug and alcohol abusers or physical requirements would violate Americans with Disabilities Act
Veterans or active duty military status may be taken into account as a special preference Applicants not fluent in English cannot be discriminated against unless those communication skills are a business necessity

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Recruiting and Interviewing

An employer cannot print or publish an advertisement for a job that indicates a preference based on race, color, religion, sex, or national origin None of these, along with education requirements, can be used as a basis for hiring unless there is a business necessity for the job Word of mouth and nepotism

a prima facie case of disparate treatment can be established through statistical evidence coupled with the fact that job vacancies were announced only through word of mouth to potential applicants Nepotism can constitute discrimination

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Recruiting and Interviewing Contd

The employer may be liable for statements made to applicants during the recruitment process If promises made during an interview are not upheld, the employee can bring an action for damages for breach of contract or fraud against the employer A newly hired employee under past agreement not to divulge trade secrets to a competitor will be liable if such agreement is broken, as will the new company if it were to act on the information

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Stutts v. Freeman
(USCA 11th Cir. (1983))

Issue: Must an employer make reasonable accommodations in the testing of handicapped applicants? Joseph Stutts applied to enter an apprenticeship program for the position of heavy equipment operator

He argued before the U.S. district court that he was an otherwise qualified handicapped individual under the Rehabilitation Act of 1973 Stutts suffered from dyslexia His application was denied on the basis of a low score on the General Aptitude Test Battery
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Stutts Contd

District court granted summary judgment in favor of TVA. Stutts appealed to the Eleventh Circuit Court of Appeals which reversed on the basis the TVA had not made a reasonable accommodation in the testing of a dyslexic patient The court held when TVA uses a test which does not accurately reflect the abilities of a handicapped person, as a matter of law they must do more to accommodate that individual

Ethics: What do you think are the reasonable limitations to the requirement to make a reasonable accommodation for an applicant or employee?

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Pre-Employment Testing and Investigations

The following types of questions can be regarded as unlawful and can constitute discrimination

child care needs year of graduation clubs or social organization memberships personal interests if they could evoke impermissible information

Employers should review local and state laws as they may relate to prior employment inquires, credit checks and prior arrest and/or conviction records with regard to making employment decisions

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Pre-Employment Contd

Medical examinations cannot be required before job offer is extended and the exams must be job related Employers must be careful that pre-employment testing is not discriminatory in effect, however unintentional Tests that screen for illegal use of drugs is not considered a medical test Drug testing has limitations under the Fourth Amendment and random testing is almost always held wrongful by the court as an illegal search and seizure
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Albemarle Paper Co. v. Moody

(USSC (1975))

Issue: What must an employer show to establish that preemployment tests racially discriminatory in effect, not in intent, are sufficiently job related? A group of African American workers sought an injunction to stop an employers testing practices The testing had a disproportionate adverse impact upon the employees and was not shown to be related to job performance. Supervisors opinions were heavily weighted. Supreme Court held the employer was not able to prove job relatedness of its testing program throughout the entire relationship between the employer and worker Ethics: How would you use the opinions of knowledgeable supervisors into the promotion policies in your own company?
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