AAEO Coordinator Training Table of Contents. Page AAEO Coordinator Training Description………….……........…………...…4 Things To Do Before Filling Job…………………………………..........…....5 Advertising…………......………………....……………………...……............8 Screening Applicants…………………………………………………………11.
AAEO Coordinator Training Description………….……........…………...…4
Things To Do Before Filling Job…………………………………..........…....5
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
Adverse Impact & Applicant Flow Data Under Title VII………………….…...67
Equal Employment Opportunity—U.S. Equal Employment Opportunity
Commission—Affirmative Action Links….…………………………………81
Provides guidance on what is required in recruitment, interviewing, and selection and hiring to comply with the federal statutes outlawing employment discrimination.
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.
If you have written job descriptions, review them for accuracy. To review and prepare a detailed job description, you should:
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.
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.
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:
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
This is another way to ask an applicant’s sex and marital status, and such questions serve no other pre-employment purpose.
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.
Title VII prohibits discrimination based on pregnancy, childbirth and related medical conditions. Therefore, employers should not ask questions regarding pregnancy or future childbearing plans.
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.
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.
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.
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.
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?”
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.
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.
During the interview process, the interviewer should take special care to avoid the following types of inquiries:
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).
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.
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.
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.
This is unlawful because it is likely to reveal information about a person’s disability prior to giving that person a job offer.
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. 1630.2(h). Being overweight, in and of itself, generally is not an impairment. See 29. C.F.R. pt. 1630 app. 1630.2(h) (noting that weight that is “within ‘normal’ range and not the result of physiological disorder” is not an impairment).
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.
An employer may ask:
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.
Notwithstanding the prohibitions stated above, an employer may:
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.
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:
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:
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.
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.
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.
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.
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.
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.
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.
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:
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.
This applies to all tests including (but not limited to):
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.
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:
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.
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.
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.
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:
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.
[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.
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.
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.
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.
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.
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.
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).
Federal Laws Prohibiting Job DiscriminationQuestions And Answers
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