Copyright 2006 Ford & Harrison LLP. All Rights Reserved

Chapter Eight

Chapter One

Hiring

Chapter One

Hiring

Table of Contents

I.ADVERTISING

A.Preferences

B.Bona Fide Occupational Qualification (BFOQ) Exception to Prohibition on Advertising Preference

C.Advertising: “Equal Opportunity Employer”

D.Americans with Disabilities Act (ADA)

II.MANDATORY QUALIFICATIONS FOR EMPLOYMENT

A.Mandatory Qualifications

B.Job Requirement Issues

III.APPLICATION FOR EMPLOYMENT

A.Format

B.Nondiscrimination Statement

C.Disabled Applicants

D.“Active” Status

E.Information Authorization and Indemnification

F.Dishonesty

G.After-Acquired Evidence of Dishonesty on Application

H.Employment-at-Will Disclaimer

I.Arbitration Provision

J.Jury Waiver Provision

K.Abbreviated Statute of Limitations for Employment Related Claims

L.Inquiries that Cause Problems

M.Employer Comments on Forms

N.Additional Information Sought After Hiree

O.Retention of Applications

IV.EMPLOYMENT AGENCIES

V.PRE-EMPLOYMENT TESTING

A.Americans with Disabilities Act (ADA) Concerns

B.Medical Examinations

C.Drug Testing

D.Alcohol Tests

E.Performance of Job-Related Functions

F.Physical Agility/Physical Fitness Tests

G.Genetic Testing

H.Written Exam

I.Polygraph Testing

J.Honesty Testing

K.Psychological Testing

VI.INTERVIEWS

A.Generally

B.ADA Concerns

C.Union Questions

D.Promises

VII.BACKGROUND CHECK, CREDIT REPORTS, AND CONSUMER REPORTING AGENCIES

A.Background Check

B.ADA Concerns

C.Other Concerns

VIII.REFERENCE CHECKS

IX.NEW HIRE REPORTING REQUIREMENTS

A.National Directory of New Hires

B.Layoffs, Rehires, and Leaves of Absence

C.Special Entities and Reporting New Hires

Chapter One

Hiring

Kelly H. Chanfrau, ,
Chapter Editor

I.ADVERTISING

A.Preferences. Federal law prohibits an employer from using a job advertisement that limits or prefers applicants based upon race, color, religion, sex, national origin, or age. 42 U.S.C. § 2000e-3(b); 29 U.S.C. § 623(e); 29 C.F.R. § 1625.4(a). State laws may contain additional prohibitions. Employers should check the laws of the states in which they have operations to ensure all employment-related advertisements comply with state as well as federal laws.

B.Bona Fide Occupational Qualification (BFOQ) Exception to Prohibition on Advertising Preference. Under Title VII of the 1964 Civil Rights Act and the Age Discrimination in Employment Act (ADEA), an employer may indicate a preference based upon religion, sex, national origin, or age if it is a “bona fide occupational qualification” (BFOQ) for employment. 42 U.S.C. § 2000e-2(e); 29 U.S.C. § 623(f)(1). This exception is limited. For example, in certain situations a prison may establish a BFOQ and only hire employees that are the same gender as the prison inmates. Dothard v. Rawlinson, 433 U.S. 321 (1977). There is no BFOQ exception for race. Ferrill v. Parker Group, Inc., 168 F.3d 468 (11th Cir. 1999).

C.Advertising: “Equal Opportunity Employer”. Some employers, including certain federal contractors, may be required to include the notation “Equal Opportunity Employer” on job advertisements. See the Affirmative Action Chapter of the SourceBook for more information on requirements applicable to federal contractors.

D.Americans with Disabilities Act (ADA). The ADA does not require employers to actively recruit individuals with disabilities. An employer may not, however, engage in recruitment activities that exclude candidates with disabilities and should make information about job openings available to people with disabilities.

II.MANDATORY QUALIFICATIONS FOR EMPLOYMENT

A.Mandatory Qualifications. Any required qualification for employment is unlawful if it has an “adverse impact” on any protected group (i.e., it disproportionately eliminates more applicants in a protected group from consideration than a nonprotected group), unless the employer can prove that the requirement is job-related and consistent with business necessity. 42 U.S.C. § 2000e-2(k). For example, a requirement that an applicant have a high school diploma may disproportionately exclude certain racial groups. Similarly, if an employer refuses to consider applicants with extensive prior experience because the employer believes the applicants are over-qualified, the employer may be accused of unlawfully screening applicants based on age. SeeEEOC v. Francis W. Parker School, 41 F.3d 1073 (7th Cir. 1994) (refusal to consider applicants based on past salaries or prior experience may be a proxy for age bias).

B.Job Requirement Issues. Legal issues may arise if an employer considers the following factors or uses the following requirements when evaluating job applicants: (1) arrest record and/or conviction record; (2) weight lifting ability; (3) minimum height and weight requirements; (4) maximum weight requirements; (5) garnishment history, credit rating, and bankruptcy; (6) minimum educational requirements; (7) grooming requirements; (8) citizenship; and (9) language requirements.

1.Arrest and Conviction Records: Hiring Policies. Increasingly, employers are facing the dilemma of how extensively they should prescreen an applicant’s criminal background. On the one hand, they wish to avoid negligent hiring suits for an employee’s violent or harassing behavior. On the other hand, they fear accusations of discrimination. Although no federal statute prohibits inquiries into arrest records, many states have enacted statutes that restrict or prohibit employers from inquiring about arrests. Many states have also enacted laws requiring criminal background checks for specific types of jobs. Accordingly, employers should check the laws of the states in which they have operations to ensure their hiring practices comply with state as well as federal laws.

The EEOC and many courts have taken the position that policies precluding the hiring of applicants with arrest records result in discrimination against minorities, because a greater percentage of minorities tend to have arrest records than do nonminorities. EEOC Policy Notice Number N-915-061, issued September 7, 1990, provides that arrest records “alone” cannot be used as “an absolute bar to employment,” but conduct that indicates unsuitability for a particular position is a basis for exclusion. If it appears that the applicant or employee engaged in the conduct for which she or he was arrested, the conduct is job-related, and the conduct occurred relatively recently, the employer may be justified in excluding the applicant/employee.

According to this guidance, although an employer may consider a conviction as conclusive evidence that a person has committed the crime alleged, arrests can only be considered as a means of “triggering” further inquiry into that person’s character or prior conduct. After considering all of the circumstances, if the employer reasonably concludes that the applicant’s or employee’s conduct is evidence that she or he cannot be trusted to perform the duties of the position in question, the employer may reject or terminate that person. Employers who refuse to hire an applicant because of an arrest record or conviction may later be required in a discrimination suit to show that the criminal conduct directly diminished the applicant’s suitability to perform the job. A refusal to hire must be job-related and consistent with business necessity.

Because an applicant might not truthfully reveal his or her arrest or conviction record, and depending on the position and the employer’s needs, it may be prudent to check outside sources. The three most common methods are: (a) contacting the applicant’s references (i.e., past employers); (b) contacting law enforcement agencies or reviewing court records in locations where the applicant has spent time (for example, places where she or he went to school, had other jobs, etc., as disclosed on the employment application); or (c) hiring a private investigator or agency to perform a background check. Because some of these investigative methods may be unlawful or require certain disclosures to the applicant under federal or state law, counsel should be consulted before adopting any investigative method other than job reference checks. For example, as stated above, an employer’s inquiries into or access to criminal or arrest record information may be unlawful or severely restricted.

Under the EEOC policy discussed above, when an arrest or conviction record is revealed, the question of “job-relatedness” – that is, whether the conduct underlying the arrest makes the applicant unfit for the position, rests on three considerations: (a) the nature and gravity of the offense; (b) the time that has passed since the arrest; and (c) the nature of the position sought. An employer must carefully consider these elements to determine whether a business justification exists to exclude the applicant from employment based on the arrest or conviction. The EEOC’s policy guidance provides that in all cases, the employer must give the applicant a “meaningful opportunity to explain the circumstances of the arrest” that includes a “reasonable effort [by the employer] to determine whether the explanation is credible.”

2.Weight Lifting Ability Requirements. Designating a job as “male only” because it requires lifting heavy weights or similar strenuous activity violates Title VII. A requirement that an employee be able to lift a certain minimum weight may also be unlawful because it may have an adverse impact on women. If the requirement does have an adverse impact, the employer must show that the requirement is job-related, consistent with business necessity, and, in some cases, that less restrictive alternatives are not acceptable. Weight lifting requirements may also create issues under the ADA, and employers may need to accommodate applicants who cannot meet the weight lifting requirements because of a disability.

3.Minimum Height and Weight Requirements. A requirement that employees be a certain height or weight may have an adverse impact on women, since women are statistically shorter and lighter than men. Such requirements may also have an adverse impact on certain nationalities or other protected groups. Such requirements could be determined to be unlawful unless the employer can prove that the minimum height or weight is job-related, consistent with business necessity, and, in some cases, that less restrictive alternatives are not acceptable.

4.Maximum Weight Requirements. Employers sometimes utilize policies excluding obese individuals from employment due to asserted health or insurance risks. Such policies may be unlawful. Individuals who are obese due to a medical condition are protected by the ADA, whereas individuals who are obese due to controllable over-eating may not be. See, e.g., Torcasio v. Murray, 57 F.3d 1340, 1354 (4th Cir. 1995) (reviewing case law finding obesity is not a disability under the ADA); Smaw v. Virginia Dep’t of State Police, 862 F. Supp. 1469, 1475 (E.D. Va. 1994) (“The case law and the regulations both point unrelentingly to the conclusion that a claim based on obesity is not likely to succeed under the ADA.”) The EEOC takes the position that obesity is a protected disability under the ADA “if it constitutes an impairment and if it is of such duration that it substantially limits a major life activity or is regarded as so doing.” Many states also have laws prohibiting employment discrimination against the disabled and, in at least some of these states, obesity may be considered a protected disability.

5.Garnishment, Credit Rating, and Bankruptcy. Most states have enacted laws restricting an employer’s ability to make employment decisions based upon garnishment of an employee’s wages. Under Title VII, employers may be found to have discriminated if they refuse to hire a person solely due to bad credit references because racial minorities may not be accorded the same advantageous credit status that is often given to nonminorities. Unless a potential employer is prepared to demonstrate the job-relatedness of credit inquiries, credit standing alone should not be the basis for denying employment. If the applicant is applying for a position in which serious credit problems would adversely affect job performance, such as an accounting position, an employer might be able to demonstrate the job-related necessity of such a requirement.

Federal law also prohibits employment discrimination “solely because” an individual: (1) has sought protection of the Bankruptcy Act; (2) has been insolvent before seeking protection under the Act; or (3) has not paid a debt that is dischargeable under the Act. 11 U.S.C. § 525(b).

6.Educational Requirements. The EEOC and most federal courts do not favorably view employer attempts to require a high school diploma or college degree from a job applicant. Due to historical discrimination and limited educational opportunities for some minority groups and older persons, statistics may show that a greater percentage of these persons lack formal educational achievement. Again, the employer must be prepared to show that the requirement is job-related, consistent with business necessity, and, in some cases, that a less restrictive alternative is not acceptable. The EEOC and the courts have required employers to show that a degree or diploma accurately demonstrates a suitability to perform the task in question and that all or substantially all of the applicants who do not have this diploma or degree are unable to perform the task.

7.Grooming Requirements. Grooming requirements are generally lawful; however, depending upon the circumstances, the law may require an employer to modify them for certain individuals. Some grooming requirements have been challenged on the grounds that they discriminate against individuals based on sex, religion, or disability.

If an employee sincerely holds a religious belief that conflicts with an employer’s grooming requirements, the employer will be required to “reasonably accommodate” the employee’s religious belief unless such accommodation would impose an “undue hardship” on the employer. Examples of “reasonable accommodation” in this context might include allowing employees with long hair to work with masks or hairnets or assigning such employees to jobs in which a grooming requirement is not necessary for safety reasons. See, e.g., Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir. 1993) (upholding the city's no beard requirement where needed for the safe use of respirators by fire fighters); Bradley v. Pizzaco of Nebraska, Inc., 7 F.3d 795 (8th Cir. 1993) (no-beard requirement not justified by customer preference).

8.Citizenship Requirements. The Immigration Reform and Control Act of 1986 (IRCA) prohibits discrimination against citizens and against intending citizens. Title VII also prohibits discrimination on the basis of national origin. While the IRCA makes it unlawful to hire an illegal immigrant or anyone else who is not authorized to work and cannot produce proof of identity and work authorization, it specifically prohibits discrimination on the basis of citizenship status. Therefore, a job requirement of U.S. citizenship is unlawful. For more information about the IRCA, see the Immigration Chapter of the SourceBook.

9.Language Requirements. In many localities, requiring employees to be fluent in spoken or written English could have an “adverse impact” on protected groups. In such situations, requiring employees to speak and write English may be unlawful unless the employer can show that fluency in English is job-related, consistent with business necessity, and, in some cases, that a less restrictive alternative is not acceptable for the job in question. For example, a janitorial position might not require the ability to write (or even speak) English fluently. For a discussion of the EEOC’s position on English-only policies, see the Religion and National Origin Discrimination Chapter of the SourceBook.

III.APPLICATION FOR EMPLOYMENT

Employment applications and interviews are the starting point for gathering information about prospective employees. In designing a job application form, employers should strive for questions that will result in securing complete, accurate, and useful information about the applicant and his or her qualifications for the position.

A.Format. First, the employer should consider whether the question is one that is prohibited by law, such as one that discriminates against or adversely impacts a protected group. Second, the employer should determine whether the information requested is necessary for the hiring decision. An employer should keep in mind it may be required to justify the inquiry at some time in the future. Third, if an employer must ask questions that might be viewed as discriminatory, such as medical questions, it should obtain this data after a conditional offer of employment is made or after the person has been hired. All medical information, including drug-testing information, should always be kept in a separate file from the employee’s personnel information.

B.Nondiscrimination Statement. Many employment application forms contain language asserting that the employer is an equal employment opportunity employer and does not discriminate. Some employers may be under an affirmative action obligation that requires a statement of nondiscrimination. See the Affirmative Action Chapter of the SourceBook.

Because the employment discrimination laws vary from state to state, and because state legislatures frequently enact new laws that prohibit additional categories of discrimination, the employer’s form should be reviewed so that any nondiscrimination statement refers to all prohibited forms of discrimination.

C.Disabled Applicants. When providing a candidate with an employment application, an employer should ensure that applicants with disabilities have an opportunity to fill out the application. This may involve making a reasonable accommodation, such as helping an individual with a visual impairment complete the application form. See the ADA Chapter of the SourceBook for details on this issue.

D.“Active” Status. To reduce the likelihood of legal claims when a position is filled long after an application was received from an unsuccessful applicant, it may be beneficial for the application to state that it is only considered active for a specified period of time, such as thirty days. Note, however, that state and federal laws may require the employer to retain applications for a specific period of time. Even those applications that are no longer active must be retained for the legally mandated time frame.

E.Information Authorization and Indemnification. The application should include authorization to obtain information from all former employers, educational institutions, and other references mentioned on the form. A general indemnification for and release of liability arising out of such inquiries should also be included in the authorization. It is also possible to have applicants sign specific releases for each of their former employers, which may increase the chance of obtaining accurate and detailed references.

F.Dishonesty. The application form should prominently state that misstatements or omissions on the application may result in a failure to hire or in immediate discharge when discovered by the employer. An employer should consider including the following statement in bold letters: “I understand that any misstatements or omissions in this application will result in a decision not to hire me, or to discharge me if discovered after I am hired.”