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1 AAEO Coordinator Training Table of Contents Page AAEO Coordinator Training Description………….……........…………...…4 Things To Do Before Filling Job…………………………………..........…....5.

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Presentation on theme: "1 AAEO Coordinator Training Table of Contents Page AAEO Coordinator Training Description………….……........…………...…4 Things To Do Before Filling Job…………………………………..........…....5."— Presentation transcript:

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

2 2 AAEO Coordinator Training Table 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 3 AAEO Coordinator Training Table 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 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 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 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 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 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 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 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 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 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 13 Interview Before 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 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 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 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 17 APPLICATION AND INTERVIEWING Title 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 18 APPLICATION AND INTERVIEWING Title 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 19 APPLICATION AND INTERVIEWING Title 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 20 APPLICATION AND INTERVIEWING Title 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 21 APPLICATION AND INTERVIEWING Title 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 22 APPLICATION AND INTERVIEWING Title 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 23 APPLICATION AND INTERVIEWING Title 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 24 APPLICATION AND INTERVIEWING Title 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 25 APPLICATION AND INTERVIEWING Title 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 26 APPLICATION AND INTERVIEWING Title 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 27 APPLICATION AND INTERVIEWING Title 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 28 APPLICATION AND INTERVIEWING Title 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 29 APPLICATION AND INTERVIEWING Age 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 30 APPLICATION AND INTERVIEWING Age 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 31 APPLICATION AND INTERVIEWING Equal 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 32 APPLICATION AND INTERVIEWING Equal 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 33 APPLICATION AND INTERVIEWING Americans 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 34 APPLICATION AND INTERVIEWING Americans 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 35 APPLICATION AND INTERVIEWING Americans 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 36 APPLICATION AND INTERVIEWING Americans 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 37 APPLICATION AND INTERVIEWING Americans 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 38 APPLICATION AND INTERVIEWING Americans 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., 16 th ed. 1992), is clearly an impairment.

39 39 APPLICATION AND INTERVIEWING Americans 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 (h). Being overweight, in and of itself, generally is not an impairment. See 29. C.F.R. pt app (h) (noting that weight that is “within ‘normal’ range and not the result of physiological disorder” is not an impairment).

40 40 APPLICATION AND INTERVIEWING Americans 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 41 APPLICATION AND INTERVIEWING Americans 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 42 APPLICATION AND INTERVIEWING Americans 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 43 APPLICATION AND INTERVIEWING Americans 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 44 APPLICATION AND INTERVIEWING Americans 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 45 APPLICATION AND INTERVIEWING Americans 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 46 APPLICATION AND INTERVIEWING Americans 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 47 APPLICATION AND INTERVIEWING Americans 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 48 APPLICATION AND INTERVIEWING Americans 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 49 APPLICATION AND INTERVIEWING Americans 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 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.

51 51 Review the Process AAEO Card Data When the selection process is over, you should quantify the applicant flow data and the selection data by protected class status and periodically review the results.

52 52 THE RECRUITMENT PROCESS There are a number of ways in which employers locate job applicants. While none of the following methods are prohibited per se, care should be taken not to rely too heavily on any one method, as the recruitment process might tend to favor younger workers over older workers, or one gender, ethnic group or racial group to the exclusion of others. There is no requirement that employers advertise all job openings, rather than hire based upon word of mouth or walk in applicants. However, employers face problems when this type of recruitment results in an unbalanced workforce.

53 53 Recruitment: Walk Ins Some employers advertise their job openings only at their places of business, and only accept applications there. This could be discriminatory because it depends on your location and workforce. If your location is in an all-white neighborhood, non- whites are likely to be deterred from applying. If the employer is a restaurant or retail store catering to the young, older people are likely to be deterred from applying, because they will believe that they will not be hired if they are not white, female or young.

54 54 Recruitment: Word of Mouth This could be discriminatory because it depends on your workforce. If that workforce is, for example, almost entirely white, male or young, then word of mouth referrals will only reinforce the non-diverse nature of the workforce and discriminate against persons who are not white, male or young.

55 55 Recruitment: Referral Fees and Bonuses Some employers offer finder’s fees to their employees (for example, paying $200 to an employee who refers another person for employment, and the new employee works for the employer for at least three months). This can cause the same problems as word of mouth referrals if your workforce is non-diverse.

56 56 Recruitment: Employment Agencies Some employers rely on employment agencies to screen employees. This also can cause problems if employers do not make it clear that the agencies should observe the law. In one case investigated by the EEOC, a Fortune 500 corporation hired an employment agency to find suitable candidates for a corporate “Manager of Cultural Diversity.” Allegedly, the corporation stated a preference for a non-white female. The agency called an EEOC District Office, and encouraged EEOC investigators to apply. However, it told a white male investigator that the corporation would not be interested in a white male, and deterred him from applying. This was found to be a Title VII violation by the employment agency. Employers who knowingly allow employment agencies to engage in discriminatory activities on their behalf have themselves violated the law.

57 57 CHECKING REFERENCES Even though a reference check often will not do anything more than to confirm job title, salary and length of employment, the information obtained can be useful. Do not ask pre-offer reference questions that would be unlawful to ask the candidate directly. Examples: Does the candidate have any children under the age of 18? Does the candidate have any disabilities? How old is the candidate? Has the candidate ever filed a discrimination charge with any local, state or federal agency? (This would constitute unlawful retaliation, even if you are not the employer who was the subject of the charge.) Has the candidate every filed a worker’s compensation claim?

58 58 HIRING Special ADA considerations The ADA distinguishes between the pre-offer and post-offer stages of the hiring process in terms of what is permissible to require of an applicant. Under the ADA, employers can test applicants during the selection process, but cannot subject them to medical examinations or disability related inquires before making job offers. Employers may use any kind of test to determine job qualifications; however, if a test screens or tends to screen out an individual with a disability or a class of individuals on the basis of disability, it must be job related and consistent with business necessity.

59 59 HIRING This applies to all tests including (but not limited to): Aptitude tests; Tests of knowledge and skill; Intelligence tests; Agility test, and Job demonstrations.

60 60 HIRING Even if a test is job-related and justified by business necessity, the employer must make a reasonable accommodation, if needed. For example, upon request, test sites must be accessible to people who have mobility disabilities. The ADA also has a specific requirement for accommodation in testing. Employers cannot subject applicants to medical examinations during the “pre-offer” stage of the selection process. Medical examinations may be required after a job offer is made, provided that the employer requires such examinations or inquiry for all entering employees in a particular job category, not merely individuals with disabilities or those whom the employer believes may have a disability. For example, an examination can be given to all employees in physical labor jobs, but not to employees entering clerical jobs.

61 61 HIRING A post-offer medical examination may be required, without a showing of business necessity. The employer at the post-offer stage of the employment process may require documentation or verification of the need for reasonable accommodation to perform the essential functions of the position. If, based on a post-offer medical examination, the employer decides to withdraw a job offer and not employ a person, the employer must be able to show that:

62 62 HIRING The reasons for the exclusion are job-related and consistent with business necessity. Example: A medical examination reveals an impairment that would require the individual’s frequent lengthy absence from work for medical treatment, and the job requires daily availability for the next three months. In this situation, the individual is not able to perform the essential functions of the job, and no accommodation is possible.

63 63 HIRING The person is being excluded to avoid a “direct threat” to health or safety of the applicant or other employees and that no reasonable accommodation would enable this person to perform the essential job functions without posing a “direct threat” or that such an accommodation would cause undue hardship. The results of a medical examination may not be used to disqualify persons currently able to perform essential job functions because of unsubstantiated speculation about future risk.

64 64 HIRING Example: An individual who has an abnormal back x-ray may not be disqualified from a job that requires heavy lifting because of the fear that s/he will be more likely to injure her/ his back or cause higher worker’s compensation or health insurance costs. However, where there is documentation that this individual has seriously injured and re-injured his/her back in a similar job, and the back condition has been further aggravated by each injury, and if there is not reasonable accommodation that would eliminate the risk of re-injury or reduce it below the “direct threat” level, an employer would be justified in rejecting an individual for this position.

65 65 HIRING If an employer withdraws a job offer based on a direct threat to the health and safety of the applicants or other employees, it must be prepared to demonstrate: A significant current risk of substantial harm (not a speculative or remote risk); The specific risk must be identified; The risk must be documented by objective medical or other factual evidence regarding the particular individual; Even if a genuine significant risk of substantial harm exists, the employer must consider whether a reasonable accommodation can eliminate or reduce it below the level of a “direct threat.”

66 66 HIRING Can I Test Applicants for Use of Illegal Drugs? Non-discriminatory application. As with all other pre- employment screening, an employer should ensure that all applicants are subjected equally to the screening device, whether or not they are members of a “protected class.” However, an alcohol or drug screening test may violate Title VII if it has an adverse impact on members of a “protected group” by disproportionately denying them employment and is not justified by business necessity. Section 104 of the ADA, 42 USC 12214, allows drug testing, and does not protect current users of illegal drugs. It may protect alcoholics who are not currently using alcohol and former or recovering drug addicts.

67 67 AVOIDING ADVERSE IMPACT AND MAINTAINING APPLICANT FLOW DATA UNDER TITLE VII [Employers should consult the “Uniform Guidelines on Employee Selection Procedures” in Part 1607 of Volume 29 of the Code of Federal Regulations and the 93 “Questions and Answers” to clarify and provide a common interpretation of these Uniform Guideline in Volume 44 of the Federal Register, pages 11996—12009, March 2, 1979 (questions and answers 1—90) and Volume 45 of the Federal Register, pages 29530—39531, May 2, 1980 (questions and answers 91— 93)]. The following discussion highlights important issues discussed in those guides.

68 68 AVOIDING ADVERSE IMPACT AND MAINTAINING APPLICANT FLOW DATA UNDER TITLE VII What are the Uniform Guidelines? –The Uniform Guidelines were written to help employers, labor unions, employment agencies, and others to determine whether these and other selection procedures comply with the laws enforced by the EEOC, U.S. Department of Justice, and the U.S. Office of Personnel Management, the purpose is to have a single set of principles (and avoid conflict between the different agencies’ requirements) to determine the proper use of selection procedures.

69 69 AVOIDING ADVERSE IMPACT AND MAINTAINING APPLICANT FLOW DATA UNDER TITLE VII What selection procedures are covered by the Guidelines? –The guidelines cover all employee selection procedures, including hiring, retention, promotion, transfer, demotion, dismissal and referral. The types of selection methods are not limited to tests. They cover a full range of selection procedures including job requirements; evaluations based on application forms; interviews, training program performance or probationary periods, and any other procedures. Tests include performance tests as well as paper and pencil tests. The Guidelines also cover procedures administered by employment agencies on behalf of employers.

70 70 AVOIDING ADVERSE IMPACT AND MAINTAINING APPLICANT FLOW DATA UNDER TITLE VII What do the Guidelines require? –The Guidelines require that a selection procedure which has an “adverse impact” on the employment opportunities of a certain race, sex, or ethnic group be examined to avoid a Title VII violation. They require employers to keep such records as to be able to make such an analysis.

71 71 AVOIDING ADVERSE IMPACT AND MAINTAINING APPLICANT FLOW DATA UNDER TITLE VII What is “adverse impact?” –According to the Guidelines, “adverse impact” means that a particular ethnic, racial or gender group is being disproportionately screened out for hire, promotion, etc. Such a selection process is unlawfully discriminatory unless the screening process, or its components, have been validated in accordance with the Guidelines, or unless the employer otherwise justifies them in accordance with federal law.

72 72 AVOIDING ADVERSE IMPACT AND MAINTAINING APPLICANT FLOW DATA UNDER TITLE VII In Connecticut v. Teal, 457 U.S. 440(1982), the Supreme Court rejected the notion that even though an individual component of a selection process has an adverse impact on a group, there is not a Title VII violation if the overall selection process does not have an adverse impact on the group (a non-discriminatory “bottom line” concept). If at any stage an individual is rejected due to an inappropriate selection method, the method is unlawful, even if the process compensates for the inappropriate selection step by ensuring that a proportionate percentage of the group is selected. Title VII protects persons individually, not merely groups.

73 73 AVOIDING ADVERSE IMPACT AND MAINTAINING APPLICANT FLOW DATA UNDER TITLE VII For which groups should an employer maintain records? –The Guidelines require employers to maintain records by sex and the following races and ethnic groups: Blacks, Native Americans (Including Alaskan natives), Asians (including Pacific Islanders), Hispanic (including persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish origin or culture regardless of race), and whites other than Hispanic. The groupings are consistent with the EEOC’s reporting requirements for all EEO report forms. Some of these requirements are modified for smaller employers in areas with non-diverse populations. –Sometimes agencies such as the OFCCP may allow the employer to lump certain groups together, such as Blacks and Hispanics into a “minority” category. Data kept in this way would not necessarily comply with the Guidelines, and could result in the EEOC finding a bookkeeping violation.

74 74 AVOIDING ADVERSE IMPACT AND MAINTAINING APPLICANT FLOW DATA UNDER TITLE VII Which kinds of records should be kept? –If an employer has fewer than 100 employees, the Guidelines allow simplified record keeping. Such employers satisfy the requirements of the Guidelines if they maintain records showing for each year. The number of persons hired, promoted and terminated for each job by sex and where appropriate by race and national origin; The number of applicants for hire and promotion by sex and where appropriate by race and national origin; and The selection procedures used.

75 75 AVOIDING ADVERSE IMPACT AND MAINTAINING APPLICANT FLOW DATA UNDER TITLE VII Employers with 100 or more employees need to maintain and have available, for each job, records or other information showing whether the total selection process for that job has an adverse impact on any of the groups discussed above. They must make adverse impact decisions at least annually for each such group. Where the total selection process for a job has an adverse impact, the employer should maintain and have available records or other information showing which components have an adverse impact. No employer, regardless of size, is required to make adverse impact determinations for race or ethnic groups which are less than 2% of the relevant labor force. Other rules apply as well.

76 76 AVOIDING ADVERSE IMPACT AND MAINTAINING APPLICANT FLOW DATA UNDER TITLE VII Is there a quick method for determining whether an employment selection process has an adverse impact? The “Four-Fifths Rule” is a rule of thumb adopted by the agencies to determine if a group has a substantially different rate of selection, which works to their disadvantage as members of a race, sex or ethnic group. The Rule is not a legal definition, but a method used by federal agencies to detect serious discrepancies in rates of hiring, promotion, or other selection decision.

77 77 AVOIDING ADVERSE IMPACT AND MAINTAINING APPLICANT FLOW DATA UNDER TITLE VII The Four-Fifths Rule is used to compare the selection rate of particular minority group applicants against that of the group with the highest rate of selection. If such a comparison shows that the percentage of persons selected from the minority applicants is less than four-fifths of the percentage of majority group applicants selected, the selection process has an adverse impact on the minority group. For example, if the employer hired 50% of white applicants, but only 30% of Black applicants the interpretation under the Guidelines is that selection process has an adverse impact upon Blacks because the selection rate for Blacks is 60% (3/5ths) of the selection rate for whites. The Four-Fifths Rule is only useful to the issue of adverse impact, and does not determine the ultimate question of unlawful discrimination. Moreover, courts allow for proof of adverse impact based upon smaller differences as long as they are statistically significant. If, in using the Four-Fifths Rule, the numbers of persons and the difference in selection rates are so small that the difference could have occurred by chance, the federal agencies will not assume the existence of adverse impact in the absence of other evidence.

78 78 AVOIDING ADVERSE IMPACT AND MAINTAINING APPLICANT FLOW DATA UNDER TITLE VII What if an employer has not kept records of applicants? –If an employer does not keep data, such as applicant flow logs, in a way that would allow a federal agency to determine if there is an adverse impact, the agency may draw an inference of adverse impact in the selection process from the failure to keep such data. In addition, the EEOC can sue the employer for a record keeping violation. –If the employer has not kept applicant records, a federal agency can still determine adverse impact by determining whether the ethnic, minority or gender group in question is underrepresented. This is done by comparing the employer’s workforce with the availability of the group in similar jobs in the relevant labor market.

79 79 AVOIDING ADVERSE IMPACT AND MAINTAINING APPLICANT FLOW DATA UNDER TITLE VII Where applicable, evidence can also be found by examining the availability of the group in feeder jobs. (i.e., those positions which naturally or generally precede entry into the position which is being examined for under representation) in the employers’ workforce. Information about the relevant labor market is obtained from U.S. Census data, which is available for numerous types of jobs in various geographical areas. If a selection process, such as a test, results in an adverse impact on a protected group, the test may or may not be justified.

80 80 AVOIDING ADVERSE IMPACT AND MAINTAINING APPLICANT FLOW DATA UNDER TITLE VII If a selection process, such as a test, results in an adverse impact on a protected group, the test may or may not be justified. –The Guidelines discuss how to determine if a selection process is justified as a valid predictor of job success. Also discusses whether different methods would have less of an impact on the affected group. This is a very technical discussion, which merits a close reading of the Guidelines.

81 81 Equal Employment Opportunity is THE LAW The Equal Employment Opportunity (EEO) Poster Every employer covered by the non-discrimination and EEO laws is required to post on its premises the poster, "Equal Employment Opportunity is the Law." The notice must be posted prominently, where it can be readily seen by employees and applicants for employment. The notice provides information concerning the laws and procedures for filing complaints of violations of the laws with the Office of Federal Contract Compliance Programs (OFCCP).

82 82 The U.S. Equal Employment Opportunity Commission Federal Laws Prohibiting Job Discrimination Questions And Answers

83 83 American Association for Affirmative Action AAAA AAAA Resources Federal Laws and Regulations Federal Enforcement Agencies Courts and Legal Opinions Other Civil Rights Organizations Other Human Resources Organizations Conflict Resolution Associations and Alternative Dispute Resolution Organizations


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