MGT 420
Legal Issues in Selection Human Resource Management
Mike Baer
Legality
• The legality of measures depends on whether they hinder Equal
Employment Opportunity
Legality
• Equal Employment Opportunity
• Government’s attempt to ensure all individuals have equal chance
for employment, regardless of their membership in certain groups
• This is accomplished using:
• Constitutional amendments
• Congressional legislation
• Executive orders
• State legislation
Legality
• Equal Employment Opportunity
• Is enforced primarily by the EEOC (C = commission)
• The government commission to ensure that all individuals have an
equal opportunity for employment
Federal Legislation
• Civil Rights Act of 1964 (Title VII)
• It is illegal for an employer (with 15 or more employees) to:
• Discriminate against any individual with respect to hiring,
compensation, terms, conditions, or privileges of employment
because of race, color, religion, sex, or national origin
• Recent supreme court rulings and other federal laws have made
it clear that sexual orientation falls under Title VII as protected
Employment Discrimination
• If the selection process discriminates against anyone protected under
Title VII, then the process may be illegal
• Two types of illegality are possible:
• Disparate Treatment
• Disparate Impact
Employment Discrimination
• According to Title VII
• Disparate Treatment:
• Intended to treat people differently based on group status
• On purpose
• Disparate Impact:
• “Facially neutral” employment practice that adversely affects
different groups
• Usually NOT on purpose
Disparate Treatment
• Proving disparate treatment
Plaintiff’s Initial Burden
Show that the plaintiff:
belongs to a protected group
applied for & was qualified for the job
was rejected despite qualifications
employer either kept seeking or hired someone
with similar qualifications
Disparate Treatment
• Proving disparate treatment
Plaintiff’s Initial Burden Defendant’s Rebuttal
The plaintiff:
Hired someone better
belongs to a protected group
applied for & was qualified for the - or-
job Race, gender, etc... is a bona fide
was rejected despite qualifications occupational qualification
employer either kept seeking or (BFOQ)
hired someone with similar
qualifications
Disparate Treatment
• Proving disparate treatment
Defendant’s Rebuttal Plaintiff’s Rebuttal
Hired someone better Defendant’s rebuttal was just an
excuse. History shows they do this
- or-
stuff a lot. There’s a “Pattern of
Race, gender, etc... is a bona fide Practice.”
occupational qualification (BFOA) A comparison of a firm’s workforce
with a relevant comparison group
suggests something discriminatory
Disparate Treatment
• Example: BFOQ and Hooters
• EEOC sued Hooters for refusing to hire male waiters
• Hooters claimed, “…since the restaurant provides vicarious sexual
recreation, female sexuality is a bona fide occupational
qualification.”
Disparate Treatment
• Actual result:
• After the savvy PR claim by Hooters, EEOC backed off of the
lawsuit but not before getting a $3.75 million settlement, and
requiring Hooters to create new “gender-neutral” positions…
Disparate Treatment
• Another Example: BFOQ and Abercrombie & Fitch
• Minority applicants were disproportionately hired and (when hired)
disproportionately worked in less visible jobs such as stocking
• Abercrombie & Fitch claimed that it’s brand image (the “A&F
look”) made certain characteristics (such as “white, young, male,
preppy”) BFOQs.
• Result?
Disparate Treatment
• A&F lost
• Plaintiffs got a $50 million settlement
Employment Discrimination
• According to Title VII
• Disparate Treatment: Intended to treat people differently based
on group status
• Disparate Impact: “Facially neutral” employment practice that
adversely affects different groups
• Example: Your company pours concrete; you hire strong people
• Strength is correlated with gender so it has disparate impact
on women
Example
Employment Discrimination
• Proving disparate impact
Plaintiff’s Initial Burden
Must show that the practice in
question disproportionally affects
a protected group relative to the
majority group
4/5ths rule
Employment Discrimination
• The 4/5ths rule: There is disparate impact if the hiring rate for a
protected group is less than 4/5’s (80%) of the hiring rate for the
majority group
• Calculate hiring rate for each group
• ex 1: Women 5/10 = 50%, Men 75/100 = 75%
• ex 2: Black 6/10 = 60%, White 75/100 = 75%
• Compare the hiring rates (minority rate/majority rate)
• ex 1: Women/Men 50/75 = .66
• ex 2: Black/White 60/75 = .80
• Is there disparate impact?
Employment Discrimination
• Proving disparate impact
Plaintiff’s Initial Burden Defendant’s Rebuttal
Must show that the practice in Show employment practice is a
question is disproportionally “business necessity”
affects a protected group How?
relative to the majority group Job analysis shows it to be
4/5ths rule critical
Good criterion-related
validity
Employment Discrimination
• Proving disparate impact
Defendant’s Rebuttal Plaintiff’s Rebuttal
Show employment practice is a Argue that other employment
“business necessity” practices could sufficiently
meet the employer’s goal
How?
Cognitive ability tests have
Job analysis shows it to be
often had more disparate
critical
impact than personality or
Good criterion-related validity work sample tests
Additions to Title VII
• In addition to protections regarding race, color, religion, sex, and
national origin, Title VII has been supplemented by the following:
• Age Discrimination in Employment Act (ADEA)
• American with Disabilities (ADA)
ADEA
• Age discrimination in employment act (ADEA)
• Prohibits discrimination against employees over the age of 40
• Firms cannot hire only younger workers unless it is a business
necessity without other valid alternatives
• Firms cannot coerce employees into taking early retirement.
If employees accept early retirement they sign an agreement
waiving their right to sue under ADEA
ADA
• Americans with Disabilities Act (ADA)
• Prohibits discrimination against employees with disabilities (subject to
specific exceptions) in all employment practices
• Including application procedures, hiring, firing, promotions,
compensation, and training
• So, what’s a disability?
ADA
• Definition of disability (three parts)
• A physical or mental impairment that substantially limits one or
more major life activities...
• (blindness, deafness, paralysis, etc...)
• ...a record of having such an impairment...
• (cancer in remission, history of mental illness, etc...)
• ...or being regarded as having such
• (severely disfigured, etc...)
ADA
• Employers must define “essential” and “marginal” job functions
• Essential:
• Fundamental duties of the position, as defined by the frequency
and criticalness ratings in a job analysis. Must be performed by
all job holders
• Marginal:
• Less important duties. Need not be performed by all job
holders
ADA
• Key distinction
• Cannot refuse employment if disability affects marginal job
functions
• Can refuse employment if disability affects essential job functions,
but only if a “reasonable accommodation” cannot be made without
“undue hardship”
• 69% of accommodations cost nothing, 29% cost less than $1000
Illegal? NO.
x
Illegal? YES.
✓
ADA
• https://www.youtube.com/watch?
v=o3mqgrmKz7s
• Takeaway:
• ADA is designed to give people a
fair shake
ADA Accommodations
ADA
• Effectiveness of the ADA
• The percentage of disabled Americans who are working has not
changed
• Around 50% of claims are without merit
• Very few claims actually deal with the disabilities that motivated the
act (blindness, deafness, lost limbs, paralysis)
• It helps some people that it was intended to but, unfortunately,
many claims are money grabs that abuse the law
Summary of Legal Acts
ACT Requirements Covers Enforcement
Agency
Title VII of Forbids discrimination Employers with 15+ employees EEOC
Civil Rights based on race, color, working 20+ hours per year;
Act religion, sex, or national labor unions, & employment
origin agencies
ADEA Prohibits discrimination in Employers with 15+ employees EEOC
employment against working 20+ hours per year;
individuals 40 years of age labor unions, & employment
and older agencies; federal government
ADA Prohibits discrimination Employers with more than 15 EEOC
against individuals with employees
disabilities
Affirmative Action
• The Civil Rights Act and EEOC attempt to decrease discrimination
• Affirmative Action seeks to redress discrimination
• Redress: to remedy or “set right”
• But, it’s hard to get Affirmative Action “right”
• Sometimes helping one minority group discriminates against
another group
• There is an ongoing legal debate about what AA can and can’t do
• See the book for more on the affirmative action debate
Employment Discrimination
• Interview Questions
• Any questions that could discriminate against a member of a
certain group is illegal (if asked with improper motives)
What Can You Ask in an Interview?
1. Are you married or do you live with someone?
2. Are you a citizen of the United States?
3. Have you ever been arrested?
4. What professional societies do you belong to?
5. What kind of people do you enjoy working with?
6. Are you planning to start a family soon?
7. What church do you at attend?
8. Where were you born?
What Can You Ask in an Interview?
9. Given that you are in a wheelchair, how do you think you will be
able to do this work?
10. What plans do you have for day care?
11. Are there any religious holidays on which you can’t be available for
work?
12. Why did you leave your previous employer?
13. What is your salary history?
14. Have your wages ever been garnished?
15. When did you graduate from college?
What Can You Ask in an Interview?
16. Do you have any physical limitations?
17. How tall are you?
18. What was the date of your last physical exam?
19. Where do you see yourself in five years?
20. Did you belong to a fraternity or sorority?
Recap
• Selection is a legal mine field
• In my opinion…
• Strive to be ethical rather than simply legal
• Are you giving everyone the same opportunity?
• Would you want to be treated that way?
• Do your selection methods disadvantage anyone?
• Make sure your selection methods focus on what is actually
needed for the job
Next time: Training
