Hiring Issues

Hiring employees is not as simple in the year 2000 as it was in 1960. Innocent questions can give rise to successful claims of wrongful failure to hire under state and federal discrimination laws.   The use of testing procedures which have a disparate impact on a group of persons protected under the civil rights laws can result in a significant award of damages on behalf of applicants for employment who are screened out as a result of such tests unless adequate steps are taken to assure the test is a legally "valid" test. Before you develop your interview strategy it is wise to have it reviewed by a firm specializing in employment law. In the paragraphs below we have attempted to illustrate some of the issues that can arise when an unhappy unsuccessful applicant for employment challenges the hiring process.

Employment Requirements Which Have A Disparate Impact.

Is it proper to require that someone have a high school diploma to qualify for the job as long as this qualification is applied to everyone considered?

Is there any problem with a qualification mandating that anyone hired must meet a minimum height requirement?

Is it legal to use a test to screen out applicants for employment as long as all persons hired have to pass the test?

If employment qualifications exclude more females than males or more African Americans than Caucasians is it permissible to use them as long as they are applied equally to each group and you have no intent to discriminate?

The answer to each of the questions above could be answered negatively by a court reviewing an employer's hiring practices unless those practices can be shown to be required by a business necessity.

What if the qualification challenged was used in good faith with no intent to discriminate against anyone? Is the employer's good faith a defense to such a challenge? Once again the answer may be a resounding NO. Almost 30 years ago the United States Supreme Court made the following observation about employment practices which have a discriminatory impact on a protected group when finding that an employee could successfully challenge a requirement that all those hired regardless of race have a high school diploma:

"[G]ood intent or absence of discriminatory intent does not redeem     employment procedures or testing mechanisms that operate as "built-in-    headwinds" for minority groups and are unrelated to measuring job         capability....Congress directed the thrust of the Act ( federal anti discrimination law) to the consequences of employment practices, not simply the motivation." Griggs v Duke Power Co, 401 US 424, 432 (1971).

Under the rationale set forth in the decision above, Courts have sometimes held that the following qualifications for employment have violated an applicant's rights under the discrimination laws:

1. Height requirements which exclude disproportionately more females than                          males.

2. Degree requirements which exclude disproportionately more persons in a                                         protected group than other applicants.

3. Tests that exclude disproportionately more persons in a  protected group                               than other applicants.

4. Background checks which  exclude disproportionately more persons in a                                         protected group than other applicants.

Such qualifications are not always found to be unlawful even when they have a discriminatory impact. However, it has usually been the case that when such qualifications have been upheld, it was because the employer had the qualifications thoroughly reviewed before implementing them to make sure they are    validated under anti discrimination guidelines. Do not leave your hiring strategy  vulnerable to discrimination claims. Have them screened by trained professionals.

If you are concerned that your job qualifications may be subject to a successful challenge under state or federal law we can tell you whether such requirements have been successfully challenged in the past and we can assist you in investigating whether the requirements are legally valid. Contact us if you want to know more.