the employment environment jody blanke distinguished professor of computer information systems and...
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The Employment Environment
Jody BlankeDistinguished Professor of Computer Information Systems and LawMercer University
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. 143 EEOC v. Consolidated Service System, p. 195
Promoting from within Neutral solicitation
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Information Gathering and Selection
The Application Process The Interview
forbidden questions, e.g., p. 149
Background or Reference Check Resume fraud
e. g. ,George O’Leary Social media
e. g. ,Facebook, LinkedIn Potential liability for providing references
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Information Gathering and Selection
Negligent Hiring Employer strategies p. 156-57 Tips for employer protection p. 158
“After-Acquired Evidence” Defense in Wrongful Termination Suits
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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
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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
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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
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Test Validity Integrity and Personality Tests
must be related to job performance
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
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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, p. 169
Many states also prohibit polygraphs
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Testing
Drug-Free Workplace Act of 1988 Applies to federal employees National Treasury Employees Union v. Rabb, p. 197
The Genetic Information Nondiscrimination Act of 2008
Private Employers Have Also Implemented Drug Tests mandatory testing “probable cause” testing random testing
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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, p. 181
Defamation Negligent Performance Evaluations
e.g., Rowe v. General Motors, p. 183-84
Discipline11