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Discrimination in employment can occur in the recruitment as well as the employment process
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Discrimination is permissible because employers can discriminate among candidates based on
interpersonal relations, communication skills, training, and education
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Because
employees are valuable assets to a business, employers must be able to choose those employees
who will perform the best work for the business
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The easiest way to discriminate against individuals is to do so in the recruitment and selection
process
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Testing, interviews, writing samples, demonstrations, and role-playing are a few
examples
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What
an employer may not do is discourage potential candidates who belong to a particular suspect
classification as defined by Title VII of the Civil Rights Act, Age Discrimination in Employment
resumes Act, and the American Disabilities Act
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Great care must be taken to ensure that
statements, overtures, and advertisements are not suspect
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In an advertisement
of a job description, the use of terms such as high school student, college student, recent college
graduate, boy, girl, and only those under forty need apply are all examples of possible violations
of the Age Discrimination in Employment Act
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This is a process in which a large pool of people seeking
professional and office work are located and, for the most part, are unemployed
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A company or professional
firm that recruits only students at graduation is discriminating against people already in the labor
force and possibly those without the mandated degree
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Uniform Guidelines on Employee Selection Procedures
Uniform Guidelines on Employee Selection Procedures was enacted in 1978 to provide counsel
in the proper methodology used in the selection process to avoid infringement of Title VII, Equal
Employment Opportunity Act (Affirmative Action) and the Equal Pay Act
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Selection Procedure
The term selection procedure encompasses the use of aptitude testing, physical evaluations,
educational credentials, employment experience, training programs, probationary terms,
interviews, and application forms to evaluate prospective candidates
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The employer’s right to investigate the employee’s background including past criminal records is
based on the employer’s showing of a justifiable business necessity
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To eliminate a disparate impact, records must be kept of the number of each minority group and
gender that apply and the number of each group selected
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If the 80percent rule is not met, then a detriment in employment selection exists against the particular
group of minority or women applicants
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Whereas disparate impact is directed against the group, disparate treatment is directed against the
individual
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This would include the right of access to
documentation, as well as to the coworkers, superiors, and subordinates of the employee alleging
a Title VII violation for the purpose of questioning them
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Test scores and the chronological order of
applications for hiring, training, and promotion, must be part of the record keeping
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An employer may seek an exemption from
the EEOC if it can prove the burden of record keeping presents undue hardship
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Record keeping can be burdensome, especially for small firms that do not have a human
resources department
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Samples
Where the number of applicants and those selected are so numerous that maintaining records on
every individual would be too burdensome, the Uniform Guidelines on Employee Selection
Procedures permits the company to select samples and maintain records on them
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If it is not, then the sample may
be challenged and an inference of discrimination may be drawn
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The company may not dispute the authenticity
of its own sample
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If one criterion is tainted, the selection process
will not be found to be discriminatory where other criteria have offset it and the final results do
not violate the 80 percent rule
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Inquiries regarding marital status, the number of children, or the prospects of having children are
also suspect
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This would be an unfair employment practice
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The examination must relate only
to the essential job-related functions and must not be a fishing expedition
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The American Disabilities Act (ADA), along with most state civil rights acts, prohibits
discriminating against an individual in the selection process because of a disability
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The employer may
be required to reasonably accommodate disabled individuals to enable them to perform the jobs
that but for their handicap they would be qualified to do
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Promotions often entail more responsibility, longer hours, travel
requirements, attendance at social affairs, decision-making requirements, and greater stress
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Older individuals with families, especially women who are mothers, may
find the benefits of the promotion outweighed by their presumption that their quality of life will
decline
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Overcoming this premise is a difficult task for the employer
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The procedure must utilize criteria, which are job-related, and the imposition of these
criteria must be uniformly applied to every applicant
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Finally, the racial, ethnic, and gender composition of the manager will be looked into where a
breach of equal opportunity employment occurs
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Some companies forbid this action; others allow it if
the employed family member does not take part in the decision process
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This approach, as well as the concept of promoting from within, is incestuous
because it may discourage diversity
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Employers argue that
promoting from within allows the company to reward an individual who is known and respected
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Negligent Hiring
Many job applications and résumés contain false representations made by prospective applicants
specifically with regard to their employment history and educational background
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Employers must
be diligent in confirming the authenticity of the offered information
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References
References should be consulted for information regarding the character, skill, knowledge and
experience of the applicant
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A few states grant qualified immunity
to the prior employer where statements are made without malice
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The prior employer’s refusal
could amount to negligent misrepresentation
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On the other hand, employers run the
risk of suits for defamation, invasion of privacy and/or interference with contractual relations
where the employee believes the information disclosed was confidential, untrue or given with the
intent to prevent the prior employee from gaining future employment
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Employers should provide only
the information requested insuring that it is accurate and documented
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This
affords protection when the reference is made in good faith
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An employer will be civilly liable in tort for the criminal acts of its employee where it knew of
the danger presented by the employee
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Background Checks
Background checks are essential to insure that the information provided by the
applicant is true
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An
employer would be wise to limit the investigation to information that is related to the
job and constitutes a business necessity
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The
information requested may differ based on the position, but all individuals applying for
the same position should be treated equally
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, then discrimination may be claimed

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