CHAPTER 2
Interviewing, Hiring, and Other Preemployment Considerations
In this chapter we consider several items that employers should keep in mind when interviewing and hiring new employees. Additionally, we will discuss several matters that applicants for employment should be aware of to ensure their legal rights are not being violated. It should be noted that when discussing requirements employers must comply with under federal law during the hiring process, employees should be similarly informed of these requirements. This is because an employer’s failure to comply with federal laws regulating the hiring process gives rise to an applicant’s right to enforce those laws through appropriate administrative or other means.
EMPLOYMENT APPLICATIONS, INTERVIEWS, AND DRUG TESTING—QUESTIONS EMPLOYERS CAN AND CANNOT ASK
Job applications and applicant interviews are foundational to formation of successful, long-term employer-employee relationships from the mutual perspectives of both employers and employees alike. Care, however, must be exercised by employers in both the design and use of legally compliant employment application forms as well as the conduct of interviews of candidates. Failure to carefully craft the employment application and interview questions ensures entanglement in a web of laws and regulations at the federal, state, and local levels of government designed to protect the rights of persons seeking employment. Whenever engaging in the hiring of employees, employers would be well advised to err on the side of caution and seek advice from qualified professionals including legal counsel, always being mindful of the inherent imbalance of power between employers and employee applicants.
While by no means exhaustive, the following guidelines, drawn from federal laws prohibiting discrimination in employment, may hopefully assist employers to avoid the potentially costly consequences of asking prohibited questions on employment applications or during job interviews. These types of questions have been found directly or indirectly to violate federal laws and regulations by revealing an applicant’s membership in a protected class of individuals (described later in this chapter).
As will become apparent from careful reading of the following examples, whether a question posed to a candidate during the interview process is lawful or unlawful depends largely on the way the question is asked by the employer. A knowledgeable employer may thus legally craft questions in both application forms and during interviews that produce relevant information necessary to the evaluation of candidates’ qualifications for employment. If, however, unartfully asked, the question posed to applicants may be found to be unlawful. Such mistakes can result in financially harmful consequences to the employer.
It must also be noted that when seeking to hire an employee, uniform employment applications should be utilized. Likewise, when interviewing candidates, a uniform set of interview questions should be prepared in writing and in advance of the interview. Because both application forms and interview questions should be prepared in advance of all interviews, it would be wise for employers to consult legal counsel to review their content in advance of their use to ensure they are compliant with all laws at the federal, state, and local level.
Also, when conducting in-person, telephonic, or video interviews of applicants, the best practice is to have a panel of three or more qualified individuals, diverse in both fields of expertise and demographics, conduct the interviews. The individual members of the panel should then independently score/evaluate all candidates on a uniform form containing the various qualifications for the position to be filled. A qualified interview panel ensures there are several witnesses present throughout the interview process, avoiding a “he said, she said” issue should a candidate challenge his unsuccessful candidacy for employment. Additionally, the use of a panel results in a more objective assessment by means of the panel’s consolidated scoring of each candidate’s qualifications.
Like all other aspects of the employment relationship, an employer’s hiring process must be free from discrimination under all applicable federal, state, and local employment laws. In order to be nondiscriminatory, employers may not ask applicants questions that would reveal characteristics protected under various federal laws, such as race, color, age, national origin, religion, sex, veteran status/military status, disability or genetic information. Furthermore, many states and local jurisdictions protect both employment applicants as well as current employees based on these characteristics. Employers are well advised to check state and local laws in their jurisdiction to ensure they are compliant with those requirements as well.
FEDERAL LAWS PROHIBITING JOB DISCRIMINATION
As mentioned above, there are numerous federal laws that prohibit discrimination in employment, discussed more fully in Chapter 9. These laws are foundational to the development of lawful employment applications and interviews of candidates. The federal laws applicable to the hiring process are as follows:
• Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;
• The Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;
• The Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are forty years of age or older;
• Titles I and V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments as well;
• Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government;
• Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee; and
• The Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.
The US Equal Employment Opportunity Commission (EEOC) enforces the foregoing federal laws. EEOC also provides oversight and coordination of all federal equal employment opportunity regulations, practices, and policies. Following the COVID-19 crisis in early 2020, EEOC has provided significant guidance on its impact upon both the ADA, the Rehabilitation Act and other EEO laws as employees return to work. EEOC’s guidance in these emerging areas of the law will be discussed in Chapter 9 of this book.
We will now discuss how these federal laws and regulations impact applications and interviews for employment.
EMPLOYMENT APPLICATIONS AND INTERVIEWS
Employment applications and interviews, when properly designed and administered, should provide the employer an opportunity to make specific inquiries into an applicant’s work and educational history in a standardized, nondiscriminatory format. An objective and uniform collection of employment data from applicants is beneficial to an employer. With the data collected it should become relatively easier to identify those candidates who meet the minimum qualifications for the position, and which candidate, in particular, is the strongest in those areas most desirable to the employer.
Note that even if a candidate has provided a potential employer with a résumé, the candidate should still be required to submit a completed employment application form. This is because the latter, if properly designed by the employer, will draw out additional and relevant information an applicant may not have included on their résumé. Employment applications must, however, be carefully worded to comply with the before-mentioned federal, state, and local laws.
Examples of What to Exclude from Employment Application Forms—Pursuant to Federal Law
Employers must avoid certain questions on application forms, particularly those that may even unintentionally reveal whether the applicant is a member of a protected class of persons under federal laws. It is also important to avoid any questions on employment applications that may either directly or indirectly reveal, or could even be perceived as a dislike for, a protected characteristic. The following five areas—Citizenship, Gender, Age, Salary History and Disability—are examples of areas to avoid:
Citizenship. Because discrimination based on national origin is illegal, questions about a person’s citizenship may reflect perceived discrimination based on national origin. Furthermore, because citizens of other countries are legally able to work in the United States after meeting certain immigration requirements, employers should not ask whether an applicant is a US citizen. To avoid potential problems in this area, an employer may simply ask whether an applicant is legally authorized to work in the United States (this is discussed more fully in Chapter 8).
Gender. Because gender discrimination is illegal, it is also unlawful to use a different standard when evaluating a female applicant versus a male applicant. Questions that reveal the applicant’s sex, marital status, number or ages of children or dependents, or provisions for childcare, as well as questions concerning pregnancy, childbearing, or birth control are legally prohibited.
Age. Because discrimination against persons who are forty years of age or older is unlawful, employment application questions that request a person’s age, date of birth, or date of high school graduation should be avoided. Alternatively, an employer may simply ask whether an applicant is at least eighteen years of age or possesses the necessary work permits to work for the employer. Many states also prohibit discrimination on the basis of age with some even providing similar protections to workers younger than forty. If, however, there are minimum age requirement for a job in order to comply with a law or for insurance purposes, an employer is permitted to ask whether an applicant meets those age requirements.
Salary History. Because salary history may reflect past discriminatory practices of an applicant’s prior employers, questions concerning an applicant’s salary history may perpetuate those discriminatory offenses. Employers subject to laws prohibiting discriminatory practices at either the federal or state levels should therefore remove salary history questions from their employment application forms and train managers responsible for conducting applicant interviews to similarly avoid these types of questions during the interview. Employers are, however, legally permitted to provide a candidate with the starting salary or salary range for the position being interviewed for and inquire whether it would be acceptable to a candidate if offered the position. Before advising a candidate of the starting salary for the position being interviewed for and inquiring whether it would be acceptable, it would be wise to first admonish the applicant not to reveal their salary history when answering the question.
Disability. Discrimination based upon disability or even perceived disability is prohibited by law. Therefore, employment application questions about disabilities, medical treatment, medications taken, addictions, or the amount of sick leave taken in his last position are generally not permitted.
Finally, in rare circumstances, such as when an employer is a federal contractor and may thus be subject to certain federal regulations, such employers may be required to inquire concerning an applicant’s race, ethnicity, gender, veteran status, disability, or other protected characteristic in order to promote and monitor equal employment opportunities. A pre-offer invitation to self-identify the foregoing characteristics may therefore be included in the federal contractor’s application materials for a position, but must be thereafter maintained separately from the all other application materials.
Additional Information to Exclude from Application Forms and Interviews
Criminal Conviction Inquiries. Several states and local jurisdictions expressly prohibit employers from asking about criminal convictions on employment applications, and may also require employers to wait until after a conditional offer of employment has been made before making such inquiries. Additionally, EEOC has at least taken the position that employers should avoid asking about criminal histories on employment applications. EEOC’s rationale for this prohibition is that an employer is more likely to objectively assess the relevance of an applicant’s conviction if it becomes known only after the employer has already vetted the applicant’s qualifications and experience. Following disclosure of any criminal convictions after a conditional offer of employment has been made, however, an employer may decline to hire the convicted applicant.
Social Security Number. While federal law does not prohibit employers from asking for a Social Security number on employment applications, it is not considered a best practice because of the threat of identity theft and other privacy concerns. Note that some states have enacted laws with specific requirements for protecting individuals’ Social Security numbers. Ensure your business practices are in compliance with such state laws whenever applicable.
Information to Be Included on Employment Applications
Employment applications should include the following job-related components:
Availability. In this section, applicants should be asked to list their availability, such as full-time, part-time, and coverage for certain shifts if necessary, to make sure the applicant’s availability is in line with its staffing needs.
Job History. In this section, applicants should be asked to provide current and previous positions held, length of employment at each job, and the reasons for leaving each previous job.
Education and Professional Designations. In this section, applicants should be asked to provide any degrees earned, the names of the institutions attended, and whenever applicable, any professional licenses and certifications currently held.
References. This section of the employment application requests applicants to provide a list of references.
Attestation. This is a statement the applicant signs attesting to the truthfulness and completeness of the information provided on his employment application. Employers should consider including language that it may take disciplinary action, up to and including termination of employment, at any time, should any of the information provided prove to be false or misleading.
IN PLAIN ENGLISH
Attestation is a legal acknowledgment of the truth and accuracy of a document as well as to any answers to questions contained in that document. It also confirms that a proper process was followed with respect to the document.
“At-Will” Statement. It is a best practice to include an “at-will” statement above the signature line to provide the applicant with notice that either the employer or the employee can terminate the employment relationship at any time, with or without notice, and for any lawful or no reason at all. While most states recognize employment is at will, many states also recognize exceptions to that general rule based upon various public policy exceptions. Because this area of law is evolving, both employers and employees alike are well advised to seek legal counsel in their state jurisdictions before acting.
EEO Statement. It is advisable that every application for employment include a statement that the company is an equal opportunity employer (“EEO statement”). This statement advises applicants that the employer’s recruiting and hiring practices are based solely on job-related criteria and that it does not discriminate on the basis of an applicant’s membership in any federal, state, or locally protected class of protected individuals.
Conclusions on Applications and Interviews for Employment
Employment applications and interviews are essential components of the hiring process. But it is also important that the application for employment and questions asked during interviews are carefully drafted and comply with all relevant federal, state, and local requirements.
An employer would be well advised to first prepare drafts of both an application form and a uniform set of questions to be asked of each job applicant when interviewed. The drafts should then be reviewed by an employment attorney to determine whether they are designed to reveal only lawful, job-related information and that no questions are unlawful or improper. Should errors be found in the drafts reviewed, legal counsel should be asked to revise wherever necessary in order to be legally compliant. Then, during the hiring process, the employer should adhere to the legally approved application form and written list of prepared questions uniformly with each candidate considered for hire.
Should, however, a candidate unexpectedly volunteer information concerning protected status, the employer should immediately redirect the interview to elicit only job-related information that will be helpful in assessing whether the candidate is qualified for the position. It is important to not use the volunteered information concerning protected status when making employment decisions.
DRUG SCREENING TESTS
By now everyone recognizes that many employers, usually during the final stages of the hiring process, require applicants to submit to drug screen testing, administered by independent and certified drug test laboratories that the employer pays for. Many job applicants, however, may feel uncomfortable submitting their bodily fluids to such testing and feel the drug screen tests themselves are unduly intrusive into areas of personal privacy concerning their activities during off-duty hours. Applicants may also object to the methodologies used in administering such tests including requiring them to provide, under supervision, a urine sample. While such testing was frequently challenged in both courts and before arbitrators in the 1980s as employers began with greater frequency to administer drug screen tests to both applicants for employment as well as members of their workforce, at this late stage it has become clear employers have the right, when exercised properly, to do so. The applicant’s options are thus limited to the following: (1) the applicant can either comply with the employer’s legitimate requirement and undergo a drug screen test; or (2) withdraw his application for employment from further consideration by the employer. Existing employees likewise face a Hobson’s choice in this regard: (1) submit to drug screen testing that may be periodic, random or for cause following certain events in the workplace such as an industrial accident; or (2) be terminated from their employment due to insubordination in refusing to do so. Still, applicants for employment and even existing employees may reasonably question why it is necessary that employers require them to submit to drug screen testing at all.
The answer to this question is twofold. In a few limited industries which are particularly safety sensitive employers are required by laws and regulations to require applicants for certain jobs, such as those requiring a commercial drivers’ license in order to operate heavy vehicles, to undergo drug and alcohol screen testing. Also, other employers regulated by such federal agencies as Federal Highway Administration, Federal Aviation Administration, and the U.S. Coast Guard are required by law to perform such tests. Thus, employers in the trucking, aviation, and mass transit industries, as well as employers who contract to perform services for the Department of Defense and NASA, simply have no choice other than to require drug screen testing of applicants seeking employment with them.
Still other employers who are not required by either law or regulation to require applicants for employment to undergo drug screen testing voluntarily choose to do so. The reasons for their decision in this regard are primarily economic in nature. Employers are required by state laws to carry workers’ compensation insurance thereby providing a forum for relief to those members of their workforce who are unfortunately injured while working on the job. Those insurance carriers who offer to provide workers’ compensation insurance to employers, however, may offer employers substantial discounts in premium paid when the employer voluntarily implements policies to maintain drug-free workplaces, including requirements to drug screen test all applicants for employment. Also, employers will likely want to limit their exposure to liability for personal injury due to workplace accidents both to their workers and members of the public who may be physically harmed by an employee during performance of duties within the scope of their work. If, however, it is found an employee involved in such a work-related accident was under the influence of drugs or alcohol at the time of the injury, the employer’s exposure to liability is increased and may result in substantial judgments against it. Finally, numerous studies have conclusively demonstrated the financial losses to employers resulting from drug and alcohol use by their employees in the forms of (1) lost productivity, (2) increased absenteeism and tardiness, and (3) increased workplace injuries and resulting workers’ compensations claims all result in increased production costs and diminished profitability.
While employers thus have the right to administer drug screen tests to its applicants for employment and existing workforce, as with most situations in the workplace its right to do so is not unlimited. What then are the outer limits of employers’ right to conduct drug screen testing?
Both courts and state legislatures have recognized that drug testing by its very nature does impact the privacy rights of both current employees and applicants for employment. It is recognized that when an employee or applicant submits to drug screen testing, the results may reveal things in addition to whether the person tested is currently under the influence of drugs. This is because the science of drug screen tests reveals the metabolites of certain drugs, which are compounds excreted by the liver due to processing the drugs that have been ingested, are present in the urine of the person being tested. The test results thus reveal whether a person has used the drug tested for at some undetermined time in the past. The test results furthermore determine the quantity of the metabolites which are present in the urine. But that quantity of metabolites found is also unable to determine with any degree of accuracy when the drug was ingested or whether at the time of submitting a urine sample for testing the applicant or current employee was impaired from fully performing the duties of his job. Such drug screen testing may furthermore reveal the use of legal, prescribed medications which in turn may be indicative of various medical conditions that the employee or applicant would rather the employer not know about.
Also, state and federal laws may place some limitations on when, how and under what circumstances drug screen testing may be performed. Because these tests require the collection of bodily fluids, usually urine, and often under controlled and supervised conditions, the manner in which these tests are performed may raise legitimate issues of personal privacy. Because the law recognizes that current employees enjoy greater rights in their continued employment than is recognized by an applicant for employment, the former’s rights are generally greater than the latter’s in this area of the law.
Drug screen testing can give rise to a claim of disability discrimination. As noted above, drug screen testing can reveal the presence of drugs that may be legal and lawfully prescribed as medication for a medical condition. Thus, if an applicant for employment is denied employment due to the presence of a lawfully prescribed medication used in treating a disability, denial of employment on that grounds may be a violation of the ADA and the employer found liable for back pay.
An employer must also be careful in the manner in which it administers drug screen testing. If it is found the employer’s practice is to administer drug screen testing only to certain groups of applicants or employees based on their race or other protected classifications, the employer may well be found to have unlawfully discriminated in the hiring or termination of those persons based on prohibited grounds.
The manner and limitations on drug screen testing have been fertile ground for state legislatures to regulate through statute. Does your state permit drug screen testing of applicants for employment at any time in the hiring process or only once a conditional offer of employment is made? Does your state permit drug screen testing of employee only if management and supervisors also submit to such testing? Does your state require if an employer conducts drug screen testing that it must advise job applicants by written notice or on the written application form of such a requirement to do so? To obtain the answers to these questions and many more applicable to the particular state in which you are located, you would be well advised to consult competent legal counsel.
Rules and attitudes concerning the use of marijuana have evolved considerably over the years. While still illegal under federal law, use of both medical and recreational marijuana has increasingly become lawful under many state laws. While at one time drug screen tests that showed the presence of the metabolite for marijuana in a urine sample above a specified cutoff level was considered legitimate grounds for denying employment or even terminating the employment of a current employee, the legalization at the state level of marijuana has caused many to rethink that result and question whether those standards should be continued.
At least the courts, however, seem to confirm an employer can deny employment to applicants who test positive for use of marijuana due to the presence of its metabolites in urine samples. The California Supreme Court, for example, has ruled that despite a state law allowing medical use of marijuana, that law applies only to bar criminal prosecution and not for purposes of prohibiting employers from denying employment to applicants for employment. Similarly, the Colorado Supreme Court has permitted an employer to terminate the employment of an employee who tested positive for marijuana even though it was ingested for medical reasons during off-duty hours.
At this point only a few states have specifically prohibited an employer from discriminatorily terminating the employment of an employee or denying employment to an applicant for use of medically prescribed marijuana. Because this is a rapidly emerging area of employment law and is specific to each state, those concerned should consult with competent counsel whenever assessing their legal rights and responsibilities.
During the hiring process, many employers require applicants for employment to take a drug screen test, usually once an applicant reaches the final stages of the process. Applicants may ask why employers require drug screen testing of them in the first place. Applicants may also question whether they must agree to take such tests. Applicants may furthermore ask whether they possess any legal rights in the drug screening process. This section of Chapter 2 will answer the foregoing questions and briefly explain the rules applicable to drug screen testing.
The Legal Limits on Drug Screen Testing
Courts and legislatures, however, are not unmindful of the reality that drug screen testing impinges upon applicants’ rights of privacy. Drug screen tests do not reveal an applicant’s current drug use or level of job impairment at the time administered. Drug tests, typically administered pursuant to a urine samples provided by an applicant, test for the level of certain metabolites, which are intermediate substances produced by human metabolism, found in the sample examined as ingested drugs are metabolized in the liver and then excreted into the applicant’s urine. Drug screen tests therefore are only indicative that certain drugs were used at some unspecified time in the past, and may also include even the ingestion of legally prescribed medications and drug use on the employee’s own time and while away from the employer’s workplace. Adding to their invasiveness, drug screen testing procedures require the applicant or employee to surrender bodily fluids, such as blood or more commonly urine, oftentimes under the close supervision of another person in order to avoid specimen tampering by the applicant or employee taking the drug screen test.
Because drug screen testing is unavoidably invasive to one’s privacy, some state and federal laws have placed restrictions on when, how, and whether it can be done. Generally, current employees have greater legal rights in this gray area of the law than do applicants for employment. This distinction is based on the premise that employees hold greater vested interests in their employment, which could be lost should they test positive for drugs. Job applicants, on the other hand, merely stand to lose a lesser interest in potential employment should they test positive for drugs.
Prospective employers, however, cannot force a job applicant to take a drug test. Prospective employers can, however, require an applicant for employment to take a drug test and pass the test as a precondition of their employment so long as they follow minimal rules when doing so. If a job applicant does not wish to take a drug screen test, however, the applicant is legally permitted to decline from doing so but will thereby remove the applicant from further consideration by an employer.
The following are some of the legal limits that may apply to applicant drug screen testing:
Some prescribed medications turn up during drug screen testing and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain medical conditions. If an applicant for employment is turned down from employment because of a positive drug screen test due to these drugs, and the applicant’s medication was legally prescribed for a disability, the employer could become financially liable for the consequences. Before administering a drug screen test, employers (or more precisely the testing laboratory they have contracted with to administer testing) should require an applicant to disclose in writing any prescribed medications currently being taken.
If an employer singles out certain groups of applicants, for example, by race or disability for drug testing, it could face discrimination claims under federal law. Where testing is permitted, it may be legally permissible for an employer to single out certain job classifications for testing (such as applicants for safety-sensitive positions). The employer, however, must uniformly test all applicants for those safety-sensitive positions in the same manner.
Violation of state-required procedures. Although virtually all states allow applicant drug screen testing, many impose procedural and other requirements on employers when they do so. For example, some states allow a drug screen test only after the applicant has received a conditional offer of employment pending passage of a drug screen test. A number of states also require employers who administer drug screen tests to provide written notification of such to applicants or indicate on job postings that such testing is required by the employer.
Invasion of privacy. Even when drug testing is otherwise permitted, an applicant’s privacy rights may be still be violated due to the manner in which the test is administered. Requiring an applicant to disrobe while in the presence of someone and providing a urine sample, for example, may be a violation of the applicant’s privacy rights.
Medical and Recreational Marijuana
More than twenty states currently allow residents to use marijuana for medical purposes. Also, eleven states currently allow residents to use marijuana recreationally. “Medical marijuana” or “compassionate use” laws typically require the user to have a written doctor’s authorization to use marijuana, often for particular diseases or disabilities. If a patient meets the criteria, that patient cannot be prosecuted under state law for crimes relating to the use, possession, or cultivation of a specified quantity of marijuana. Federal drug laws, however, still apply.
If an applicant lives in one of these states and has a valid prescription for marijuana used for medical purposes or resides in a state where recreational use has been legalized, the applicant may ask whether an employer can refuse employment based on a positive drug screen test for this legally prescribed drug. So far at least, in most states, the answer appears to be “yes.” The California Supreme Court, for example, has ruled that the state’s medical marijuana law applies only to criminal prosecution and not to any workplace prohibitions. Likewise, the Colorado Supreme Court has also held that an employer may terminate an employee for off-duty use of medical marijuana, even though the use was lawful under Colorado state law.
A handful of states, however, have passed specific laws prohibiting an employer from discriminating against an employee or applicant for their lawful use of medical marijuana or requiring an employer to reasonably accommodate such employees in the workplace. This area of law is relatively new, however, and in all cases dealing with use of marijuana and applications for employment, legal counsel should be consulted to determine the applicable state laws.
GENETIC INFORMATION NONDISCRIMINATION ACT (GINA)
In passing the Genetic Information Nondiscrimination Act (GINA) of 2008, Congress noted the advances in genetics that have opened new opportunities for medical progress. Those advances include the early detection of illnesses, the ability to take steps to reduce the likelihood individuals will contract a particular disorder, and the development of better therapies that are more effective against disease or have fewer side effects than current treatments. Congress observed, however, these advances have also given rise to the potential misuse of genetic information to discriminate in health insurance and employment opportunities. As noted by Congress, the current explosion in the science of genetics, and the history of sterilization laws by the states based on early genetic science, compelled Congressional action in this area.
Furthermore, it was noted that Congress had already been informed of examples of genetic discrimination in the workplace. These include the use of preemployment genetic screening at Lawrence Berkeley Laboratory, which led to a court decision in favor of the employees in Norman-Bloodsaw v. Lawrence Berkeley Laboratory (135 F.3d 1260, 1269 (9th Cir. 1998)). Congress thus concluded it clearly had a compelling public interest in relieving the fear of discrimination and in prohibiting its actual practice in employment and health insurance.
The EEOC enforces GINA’s Title II provisions dealing with genetic discrimination in employment. Title II of GINA prohibits genetic information discrimination in employment.
Pursuant to GINA, employers are prohibited from (1) discriminating based on genetic information in hiring, firing, and other employment actions, and (2) requesting, requiring, or purchasing genetic information with respect to employees or family members of employees.
Limited exceptions to the foregoing prohibitions are provided by GINA for purposes of monitoring compliance with Occupational Safety and Health Act (OSHA), Federal Mine Safety and Health Act, or Family Medical Leave Act (FMLA) requirements.
Under GINA, it is illegal for employers to discriminate against employees or employment applicants because of their genetic information. GINA thus prohibits the use of genetic information in making employment decisions, restricts employers, and other covered entities, including employment agencies, labor unions, and joint labor-management training and apprenticeship programs, from requesting, requiring, or purchasing genetic information, and strictly limits disclosure of genetic information.
Genetic Information Defined
Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about the manifestation of a disease or disorder in an individual’s family members (i.e., family medical history). Family medical history is included in the definition of genetic information because that information can be used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. Genetic information also includes an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual, and the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using assisted reproductive technology.
IN PLAIN ENGLISH
While the term “genetic information” is quite complex and the legal definition is very technical, in plain English this deals with the traits that are transmitted from one generation to another.
Discrimination under GINA
GINA forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information is not relevant to an individual’s current ability to work. Under GINA, it is also illegal to “retaliate” against an applicant or employee for filing a charge of discrimination, for participating in a discrimination proceeding (such as a discrimination investigation or lawsuit), or for otherwise opposing discrimination.
Harassment under GINA
It is also illegal under GINA to harass a person because of that individual’s genetic information. Harassment can include making offensive or derogatory remarks about an applicant or employee’s genetic information, or about the genetic information of a relative of the applicant or employee. Although GINA does not prohibit simple teasing, offhand comments, or isolated incidents that are not sufficiently serious, harassment is illegal when it is so severe or pervasive that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the employee being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area of the workplace, a coworker, or someone who is not an employee, such as a client or customer of the employer.
Exceptions to Prohibition against Obtaining Genetic Information
It will usually be unlawful for an employer to obtain genetic information. There are, however, six narrow exceptions to this prohibition as follows:
• Inadvertent acquisitions of genetic information do not violate GINA, such as in situations where a manager or supervisor overhears someone talking about a family member’s illness;
• Genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis, if certain specific requirements are met;
• Family medical history may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws or pursuant to an employer policy), where an employee is asking for leave to care for a family member with a serious health condition;
• Genetic information may be acquired through commercially and publicly available documents like newspapers, as long as the employer is not searching those sources with the intent of finding genetic information or accessing sources from which they are likely to acquire genetic information (such as websites and online discussion groups that focus on issues such as genetic testing of individuals and genetic discrimination);
• Genetic information may be acquired through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary; and
• Acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes such as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.
Confidentiality
Finally, it is also unlawful for an employer to disclose genetic information about applicants for employment or employees. Employers must keep genetic information confidential and in a separate medical file. (Genetic information may be kept in the same file as other medical information in compliance with the Americans with Disabilities Act.) There are limited exceptions to this nondisclosure rule. Such exceptions that provide for the disclosure of relevant genetic information include disclosure to government officials investigating compliance with Title II of GINA and disclosures made pursuant to court order.
FAIR CREDIT REPORTING ACT (FCRA)
Before You Get Background Information
EEOC
In all cases, make sure that you’re treating everyone equally. It is illegal to check the background of applicants and employees when that decision is based on a person’s race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, asking only people of a certain race about their financial histories or criminal records is evidence of discrimination.
Except in rare circumstances, do not try to get an applicant’s or employee’s genetic information, which includes family medical history. Even if you have that information, do not use it to make an employment decision. (For more information about this law, see the EEOC’s publications explaining the Genetic Information Nondiscrimination Act, or GINA.) Do not ask any medical questions before a conditional job offer has been made. If the person has already started the job, do not ask medical questions unless you have objective evidence that the individual is unable to do the job or poses a safety risk because of a medical condition.
FTC
If you get background information (for example, a credit or criminal background report) from a company in the business of compiling background information, there are additional procedures the FCRA requires beforehand:
• Tell the applicant or employee you might use the information for decisions about their employment. This notice must be in writing and in a stand-alone format. The notice cannot be in an employment application. You can include some minor additional information in the notice (like a brief description of the nature of consumer reports), but only if it does not confuse or detract from the notice;
• If you are asking a company to provide an “investigative report”—a report based on personal interviews concerning a person’s character, general reputation, personal characteristics, and lifestyle—you must also tell the applicant or employee of their right to a description of the nature and scope of the investigation;
• Get the applicant’s or employee’s written permission to do the background check. This can be part of the document you use to notify the person that you will get the report. If you want the authorization to allow you to get background reports throughout the person’s employment, make sure you say so clearly and conspicuously; and
• Certify to the company from which you are getting the report that you:
• notified the applicant and got their permission to get a background report;
• complied with all of the FCRA requirements; and
• will not discriminate against the applicant or employee, or otherwise misuse the information in violation of federal or state equal opportunity laws or regulations.
Using Background Information
EEOC
Any background information you receive from any source must not be used to discriminate in violation of federal law. This means that you should:
• Apply the same standards to everyone, regardless of their race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, if you do not reject applicants of one ethnicity with certain financial histories or criminal records, you cannot reject applicants of other ethnicities because they have the same or similar financial histories or criminal records;
• Take special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older. For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a “disparate impact” and is not “job related and consistent with business necessity”; and
• Be prepared to make exceptions for problems revealed during a background check that were caused by a disability. For example, if you are inclined not to hire a person because of a problem caused by a disability, you should allow the person to demonstrate their ability to do the job—despite the negative background information—unless doing so would cause significant financial or operational difficulty.
FTC
When taking an adverse action (for example, not hiring an applicant or firing an employee) based on background information obtained through a company in the business of compiling background information, the FCRA has additional requirements:
• Before you take an adverse employment action, you must give the applicant or employee:
• a notice that includes a copy of the consumer report you relied on to make your decision; and
• a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act,” which you should have received from the company that sold you the report.
By giving the person the notice in advance, the person has an opportunity to review the report and explain any negative information.
• After you take an adverse employment action, you must tell the applicant or employee (orally, in writing, or electronically):
• that the individual was rejected because of information in the report;
• the name, address, and phone number of the company that sold the report;
• that the company selling the report did not make the hiring decision, and cannot give specific reasons for it; and
• that the individual has a right to dispute the accuracy or completeness of the report, and to get an additional free report from the reporting company within 60 days.
Disposing of Background Information
EEOC
Any personnel or employment records you make or keep (including all application forms, regardless of whether the applicant was hired, and other records related to hiring) must be preserved for one year after the records were made, or after a personnel action was taken, whichever comes later. (The EEOC extends this requirement to two years for educational institutions and for state and local governments. The Department of Labor also extends this requirement to two years for federal contractors that have at least 150 employees and a government contract of at least $150,000.) If the applicant or employee files a charge of discrimination, you must maintain the records until the case is concluded.
FTC
Once you have satisfied all applicable recordkeeping requirements, you may dispose of any background reports you received. However, the law requires that you dispose of the reports—and any information gathered from them—securely. That can include burning, pulverizing, or shredding paper documents and disposing of electronic information so that it cannot be read or reconstructed. For more information, see “Disposing of Consumer Report Information? Rule Tells How” at http://www.business.ftc.gov/documents/alt152-disposing-consumer-report-information-rule-tells-how.
EMPLOYEE POLYGRAPH PROTECTION ACT OF 1988 (EPPA)
The Employee Polygraph Protection Act of 1988 (EPPA) is administered and enforced by the US Department of Labor’s Wage and Hour Division. The EPPA applies to most private employers but does not, however, cover federal, state, and local government agencies.
Basic EPPA Provisions/Requirements
The EPPA prohibits most private employers from using lie detector tests, either for preemployment screening or during the course of employment. Employers generally may not require or request an employee or applicant to take a lie detector test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to do so or exercising other rights under the EPPA.
Employers may not use or inquire about the results of a lie detector test or discharge or discriminate against an employee or applicant on the basis of the results of a test, or for filing a complaint or for participating in a proceeding under the EPPA.
Subject to restrictions, the EPPA permits polygraph tests to be administered to certain job applicants of security service firms (armored car, burglar alarm, and security guard) and of pharmaceutical manufacturers, distributors, and dispensers.
Subject to restrictions, the EPPA also permits polygraph testing of certain employees of private firms who are reasonably suspected of involvement in a workplace incident such as theft or embezzlement that resulted in specific economic loss or injury to the employer.
Where polygraph examinations are allowed, they are subject to strict standards for the conduct of the test, including the pretest, testing, and posttesting phases. An examiner must be licensed, if required by a state in which the test is to be conducted, and must be bonded or have professional liability coverage. The EPPA strictly limits the disclosure of information obtained during a polygraph test.
Employee Rights under the EPPA
The EPPA provides that employees have a right to employment opportunities without being subjected to lie detector tests, unless a specific exemption as discussed above applies. Where polygraph examinations are allowed, they are subject to strict standards at the pretest, testing, and posttesting stages. Specific notices must be given to employees or prospective employees. The EPPA also provides employees the right to file a lawsuit for violations. In addition, Wage and Hour Division accepts complaints of alleged EPPA violations.
Recordkeeping, Reporting, Notices, and Posters
Poster. Every employer subject to EPPA must post and keep posted on its premises a notice explaining the EPPA. The notice must be posted in a prominent and conspicuous place in every establishment of the employer where it can be readily observed by employees and applicants for employment. There is no size requirement for the poster or requirement as to whether it must be written in Spanish or English.
Notices. There are specific notices that must be given to individual being tested (“examinees”) and examiners in instances where polygraph tests are permitted. When a polygraph test is administered pursuant to the economic loss or injury exemption mentioned above, the employer is required to provide the examinee with a statement prior to the test, in a language understood by the examinee, which fully explains the specific incident or activity being investigated and the basis for testing particular employees. The statement must contain, at a minimum, the following:
1. An identification with particulars of the specific economic loss or injury to the business of the employer;
2. A description of the employee’s access to the property that is the subject of the investigation;
3. A detailed description of the basis of the employer’s reasonable suspicion that the employee was involved in the incident or activity under investigation; and
4. The signature of a person (other than the polygraph examiner) authorized to legally bind the employer.
Every employer who requests an employee or job applicant to submit to a polygraph examination pursuant to the investigation, drug manufacturer or security services EPPA exemptions must provide:
1. Reasonable written notice of the date, time, and place of the examination and the examinee’s right to consult with legal counsel or an employee representative before each phase of the test;
2. Written notice of the nature and characteristics of the polygraph instrument and examination;
3. Extensive written notice explaining the examinee’s rights, including a list of prohibited questions and topics, the examinee’s right to terminate the examination, and the examinee’s right to file a complaint with the Department of Labor alleging violations of EPPA; and
4. Employers must also provide written notice to the examiner identifying the persons to be examined.
Recordkeeping. In the limited instances where the EPPA permits the administration of polygraph tests, recordkeeping requirements apply both to employers and polygraph examiners. Employers and polygraph examiners must retain records identified in the law for a minimum of three years from the date the polygraph examination is conducted (or from the date the examination is requested if no examination is conducted). Employers investigating an economic loss or injury must maintain a copy of the statement that sets forth the specific incident or activity under investigation, the basis for testing that particular employee, and proof of service of that statement to the examinee. Employers who manufacture, distribute, or dispense controlled substances must maintain records specifically identifying the loss or injury in question and the nature of the employee’s access to the person or property that is the subject of the investigation. Every employer who requests an employee or prospective employee to submit to a polygraph examination pursuant to EPPA exemptions must maintain:
1. A copy of the written statement that sets forth the time and place of the examination and the examinee’s right to consult with an attorney;
2. A copy of the written notice provided by the employer to the examiner identifying the persons to be examined;
3. Copies of all opinions, reports, or other records furnished to the employer by the examiner relating to the examinations;
4. All polygraph examiners must maintain all opinions, reports, charts, written questions, lists, and other records relating to polygraph tests of the person being tested, as well as records of the number of examinations conducted by that examiner each day, and the duration of each test period; and
5. All exempt private-sector employers and polygraph examiners hired to conduct examinations must keep the required records safe and accessible at the place or places of employment or business or at one or more established central recordkeeping offices. If the records are maintained at a central recordkeeping office, the records must be made available within seventy-two hours following notice from the Secretary of Labor or an authorized representative.
IN PLAIN ENGLISH
The Employee Polygraph Protection Act of 1988 exemptions are: 1) polygraph tests conducted pursuant to an ongoing investigation, 2) tests conducted by drug manufacturers, and 3) tests conducted in the security service industry.
Penalties/Sanctions
The Secretary of Labor can bring court action to restrain violators and assess penalties. An employer who violates the law may be liable to the employee or prospective employee for appropriate legal and equitable relief, which may include employment, reinstatement, promotion, and payment of lost wages and benefits.
Any person against whom a penalty is assessed may, within thirty days of the notice of assessment, request a hearing before an administrative law judge. If dissatisfied with the administrative law judge’s decision, that person may request a review of the decision by the Administrative Review Board, which the Secretary of Labor has designated to issue final agency decisions. Final determinations on violations are enforceable in court.
Relation to State, Local, and Other Federal Laws
The EPPA generally does not override any provision of any state or local law or any collective bargaining agreement that is more restrictive with respect to lie detector tests.
WRITTEN JOB DESCRIPTIONS
Before ever beginning the hiring process, it is critical for an employer to have a written and well-thought-out job description for all positions including that to be filled. Having written descriptions accomplishes many important tasks that protect and assist an employer’s business and employees such as:
• Serving as a reference guide for determining comparable industry salaries;
• Helping to maximize dollars spent on employee compensation for the position by ensuring the experience and skills necessary for the job are detailed and matched to prospective applicants;
• Functioning as a foundation for developing interview questions;
• Detailing information about the position that can be incorporated into “help wanted” ads;
• Discouraging employees from refusing to do a task because “it is not my job”;
• Providing a basis for employee reviews, salary increases, setting goals, and growth paths; and
• Serving as legal documentation that can be useful in the event an employee files a wrongful termination or discrimination lawsuit against the employer.
An effective job description details the primary functions of the job, how the tasks will be carried out, and the necessary skills needed to perform the job effectively. It should anticipate employee growth and potential problems due to misunderstanding. An effective job description should do more than just describe the position; it should also address potential questions about the job in the future.
An effective job description should therefore address the following areas:
• Job Title. Provides clarity regarding the type of position, its interface with other positions, and its relative hierarchy within the organization;
• Salary Range. Specifies the starting, midrange, and maximum salary for the position. Also includes information about how employees may be eligible for additional compensation such as sales commissions, performance bonuses, and annual raises.
• Purpose and Objectives. Provides a general statement, summarizing in a few sentences the purpose and objectives of the position;
• Specific Duties. Provides a detailed list of specific duties and tasks in their order of importance. The list of duties should detail every activity that will take a percentage of the employee’s time and include any accountability the employee may have for meeting the stated purpose and objectives of the position;
• Description of Reporting Structure. Provides a detailed description of any and all roles the employee will play. It should include their own supervisory roles, if applicable, as well as whom the employee reports to directly and indirectly. If the employee is to work closely with other employees or departments, include that information as well. If the job requires considerable interaction with many different coworkers, it may be helpful to include a company-wide organizational flowchart.
• Experience and Skills. Be as specific as possible when detailing the experience and skills required to perform the job. For example, if the position involves the use of a computer, list the type(s) of software and hardware customarily used to perform the job.
• Description of Ideal Candidate, List other skills and experience that an ideal candidate would possess but are not absolutely necessary to be considered for the job.
• Work Location and Schedule. List the location of the job and the typical days and hours of the position. Also mention whether the job may require availability outside usual working hours, either often or on occasion, and whether it will require travel, and, if so, the percentage of time spent traveling.
• Other Duties as Assigned. Inclusion of “other duties as assigned” in a job description allows the employer to add new tasks to the position as they are needed and hopefully avoid having the employee resist being asked to do something not in the job description. In some cases, it may be beneficial to clarify beyond the generic “other duties” and be more descriptive—for example, “other clerical duties as assigned” or other duties as assigned by a particular department or person.
IN PLAIN ENGLISH
A flowchart is a diagram that shows the structure of an organization and how tasks are handled by that organization. It assists the viewer in understanding how an organization works and who is in charge of particular projects, departments, groups, or the like. It can also be used to show how a particular project or task is accomplished.
Restrictions on Employees’ Actions by Their Prior Employers
It is quite common for employers to require new employees to sign an employment contract such as the one discussed in Chapter 3. Those employment contracts frequently include restrictions regarding competition by the employee during employment and after employment terminates, restrictions on solicitation for business during employment and after employment terminates, and provisions advising the employee of the fact the employee has been provided with trade secrets that may not be used or disclosed without receiving express written permission from the employer. In addition, in the course of employment many employees create intellectual property such as literature, advertising, or music, all of which are protected by copyright and unless otherwise agreed belong to the employer (see Chapter 10 for a more detailed discussion of this subject).
IN PLAIN ENGLISH
Intellectual property is property that includes products of the mind such as copyrights, trademarks, patents, trade secrets, and other rights that protect creative products.
Noncompetition restrictions are frequently addressed by state law. A list of those statues is found in Appendix A of this book. Non-solicitation restrictions may also be addressed in cases and it is important to determine whether those type of restrictions are enforceable in the state of employment. Every state in the United States restricts the use of trade secrets. This subject is discussed more fully in Chapter 10 of this book.
Other forms of intellectual property including, names, symbols, or logos used to identify the source of a product or service (trademarks) or inventions that may be protected as trade secrets, or where appropriate, patented, are discussed in Chapter 10 of this book and are also frequently covered by employment contracts.
It is therefore essential for applicants to provide prospective employers with copies of any employment contracts the applicant signed with prior employers. This is because the employment contract with prior employers may contain language that prohibits the individual from using intellectual property of the prior employer or which restricts the individual from performing certain tasks. Certainly, if the applicant has had numerous prior positions, the applicant should not be required to provide every employment contract signed. It would only be necessary for the prospective employer to review those employment contracts that may remain in effect at the time of the new hiring. It is likely that contracts that are older than five years will not have non-compete or non-solicitation provisions still in effect, though other intellectual property restrictions will likely be operative and a prospective employee should be advised of this fact.
Interviewers should advise applicants not to use copyrighted material created for former employers, not to use trademarks created for former employers or trade secrets while working for former employers. A provision in the employment contract should address these issues. It is also important for perspective employees not to infringe on existing patents.
A candid discussion of these issues during the interview process is very important, and interviewers should have a checklist of subjects to discuss so that any important information is not inadvertently omitted.
DISCRIMINATION IN HIRING IN THE FEDERAL SECTOR
Other federal laws, not enforced by EEOC, also prohibit discrimination and reprisals against federal employees and applicants for employment. The Civil Service Reform Act of 1978 (CSRA) contains a number of prohibitions, known as “prohibited personnel practices,” which are designed to promote overall fairness in federal personnel actions. The CSRA prohibits any federal employee who has authority to take certain personnel actions from discriminating for or against federal employees or applicants for employment on the bases of race, color, national origin, religion, sex, age, or disability. It also provides that certain personnel actions cannot be based on attributes or conduct that do not adversely affect employee performance, such as marital status and political affiliation. The Office of Personnel Management (OPM) has furthermore interpreted the prohibition of discrimination based on conduct to include discrimination based on sexual orientation. The CSRA also prohibits reprisal against federal employees or applicants for whistleblowing, or for exercising an appeal, complaint, or grievance right. The CSRA is enforced by both the Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB).
DISCRIMINATION IN OTHER ASPECTS OF THE EMPLOYMENT RELATIONSHIP
While the discussion of various federal laws prohibiting discrimination in employment has thus far focused on the hiring process, it cannot be overlooked that those same statutes also prohibit discrimination during the entire employment relationship after hiring. Discriminatory practices in employment are found under Title VII, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and the Age Discrimination in Employment Act, which prohibit discrimination in any aspect of employment, including:
• hiring (discussed earlier) and firing;
• compensation, assignment, or classification of employees;
• transfer, promotion, layoff, or recall;
• job advertisements;
• recruitment;
• testing;
• use of company facilities;
• training and apprenticeship programs;
• fringe benefits;
• pay, retirement plans, and disability leave; or
• other terms and conditions of employment.
Discriminatory practices under the before-listed laws, discussed in greater detail below, include the following conduct by employers:
• harassment on the basis of race, color, religion, sex, national origin, disability, genetic information, or age;
• retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices;
• employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities, or based on myths or assumptions about an individual’s genetic information; and
• denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.
Employers are furthermore required to post notices to all employees advising them of their rights under the laws which EEOC enforces and their right to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading.
Many states and municipalities have also enacted protections against discrimination and harassment based on sexual orientation, status as a parent, marital status, and political affiliation.
FEDERAL LAWS PROHIBITING DISCRIMINATION IN THE EMPLOYMENT RELATIONSHIP
Title VII
Title VII prohibits not only intentional discrimination, but also practices that have the effect of discriminating against individuals because of their race, color, national origin, religion, or sex. National origin discrimination is illegal discrimination against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. A rule requiring that employees speak only English on the job may violate Title VII unless an employer shows that the requirement is necessary for conducting its business. If the employer believes such a rule is necessary, employees must be informed when English is required and the consequences for violating the rule.
IN PLAIN ENGLISH
Discrimination in and of itself is not illegal. For example, an individual can discriminate against a particular product or service for the individual’s personal use so long as the reason for not using that product or service is not unlawful. Unlawful discrimination refers to discrimination on the basis of race, creed, disability, national origin, religion, and the like.
The Immigration Reform and Control Act (IRCA) of 1986 requires employers to assure that employees hired are legally authorized to work in the United States. It should be cautioned, however, an employer who requests employment verification only for individuals of a particular national origin, or individuals who appear to be or sound foreign, may be in violation of both Title VII and IRCA. Verification must therefore be obtained from all applicants and employees. Employers who impose citizenship requirements or give preferences to US citizens in hiring or employment opportunities may also violate IRCA.
Employers are required to provide religious accommodation under Title VII. An employer is required to reasonably accommodate the religious belief of an employee or prospective employee, unless doing so would impose an undue hardship.
Title VII’s broad prohibitions against sex discrimination specifically cover:
• Sexual Harassment. This includes practices ranging from direct requests for sexual favors to workplace conditions that create a “hostile environment” for persons of either gender, including same-sex harassment. Note, the hostile environment standard also applies to harassment on the bases of race, color, national origin, religion, age, and disability.
• Pregnancy Based Discrimination. Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions.
Additionally, rights are also available to parents and others under the Family and Medical Leave Act (FMLA) enforced by the US Department of Labor.
Age Discrimination in Employment Act (ADEA)
The Age Discrimination in Employment Act’s broad ban against age discrimination also specifically prohibits:
• statements or specifications in job notices or advertisements of age preference and limitations. An age limit may only be specified in the rare circumstance where age has been proven to be a bona fide occupational qualification (BFOQ);
• discrimination on the basis of age by apprenticeship programs, including joint labor-management apprenticeship programs; and
• denial of benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.
Equal Pay Act (EPA)
The Equal Pay Act prohibits discrimination on the basis of sex in the payment of wages or benefits, where men and women perform work of similar skill, effort, and responsibility for the same employer under similar working conditions.
Note, however, that:
• Employers may not reduce wages of either sex to equalize pay between men and women;
• A violation of the EPA may occur where a different wage was/is paid to a person who worked in the same job before or after an employee of the opposite sex; and.
• A violation may also occur where a labor union causes the employer to violate the law.
Titles I and V of the Americans with Disabilities Act (ADA)
The ADA prohibits discrimination on the basis of disability in all employment practices. It is necessary to understand several important ADA definitions in order to know who is protected by the law and what constitutes illegal discrimination:
“Individual with a Disability”
An individual with a disability under the ADA is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having a disability. An entity subject to the ADA regards someone as having a disability when it takes an action prohibited by the ADA based on an actual or perceived impairment, except if the impairment is both transitory (lasting or expected to last six months or less) and minor. Major life activities are basic activities that most people in the general population can perform with little or no difficulty such as walking, breathing, seeing, hearing, speaking, learning, thinking, and eating. Major life activities also include the operation of a major bodily function, such as functions of the immune system and normal cell growth, as well as brain, neurological, and hormonal functions.
“Qualified”
An individual with a disability is “qualified” if the individual satisfies skill, experience, education, and other job-related requirements of the position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of that position.
“Reasonable Accommodation”
Reasonable accommodation may include, but is not limited to, making existing facilities used by employees readily accessible to and usable by persons with disabilities, job restructuring, modification of work schedules, providing additional unpaid leave, reassignment to a vacant position, acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters. Reasonable accommodation may be necessary to apply for a job, to perform job functions, or to enjoy the benefits and privileges of employment that are enjoyed by people without disabilities. An employer is not required to lower production standards to make an accommodation. An employer generally is not obligated to provide personal-use items such as eyeglasses or hearing aids. A person who only meets the “regarded as” definition of disability is not entitled to receive a reasonable accommodation.
“Undue Hardship”
An employer is required to make a reasonable accommodation to a qualified individual with a disability unless doing so would impose an undue hardship on the operation of the employer’s business. Undue hardship means an action that requires significant difficulty or expense when considered in relation to factors such as a business’s size, financial resources, and the nature and structure of its operation.
“Prohibited Inquiries and Examinations”
Before making an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in the same job category. Medical examinations of employees must be job-related and consistent with business necessity.
“Drug and Alcohol Use”
Employees and applicants currently engaging in the illegal use of drugs are not protected by the ADA when an employer acts on the basis of such use. Tests for illegal use of drugs are not considered medical examinations and, therefore, are not subject to the ADA’s restrictions on medical examinations. Employers may hold individuals who are illegally using drugs and individuals with alcoholism to the same standards of performance as other employees.
The Civil Rights Act of 1991 (CRA)
The Civil Rights Act of 1991 made major changes in the federal laws against employment discrimination enforced by EEOC. Enacted in part to reverse several Supreme Court decisions that limited the rights of persons protected by these laws, CRA also provides additional protections. The CRA authorizes compensatory and punitive damages in cases of intentional discrimination, and provides for obtaining attorneys’ fees and the possibility of jury trials. It also directs the EEOC to expand its technical assistance and outreach activities.
IN PLAIN ENGLISH
Compensatory damages are actual damages such as lost wages. Punitive damages are imposed as a penalty and for the purpose of discouraging future similar violations. Punitive damages are only awarded in cases where the improper act is not merely accidental.
Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA)
GINA prohibits discrimination against applicants, employees, and former employees on the basis of genetic information. This includes a prohibition on the use of genetic information in all employment decisions; restrictions on the ability of employers and other covered entities to request or to acquire genetic information, with limited exceptions; and a requirement to maintain the confidentiality of any genetic information acquired, with limited exceptions.
EMPLOYERS AND OTHER ENTITIES COVERED BY EEO LAWS
Title VII, the ADA, and GINA cover all private employers, state and local governments, and educational institutions that employ fifteen or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor-management committees controlling apprenticeship and training.
The ADEA covers all private employers with twenty or more employees, state and local governments (including school districts), employment agencies, and labor organizations.
The EPA covers all employers who are covered by the Fair Labor Standards Act. Virtually all employers are subject to FLSA’s provisions.
Title VII, the ADEA, GINA, and the EPA also cover the federal government. In addition, the federal government is covered by Sections 501 and 505 of the Rehabilitation Act of 1973, as amended, which incorporate the requirements of the ADA. However, different procedures are used for processing complaints of federal discrimination. For more information on how to file a complaint of federal discrimination, contact the EEO office of the federal agency where the alleged discrimination occurred.
The CSRA (not enforced by EEOC) covers most federal agency employees except employees of a government corporation, the FBI, the CIA, the Defense Intelligence Agency, the National Security Agency, and as determined by the president, any executive agency or unit thereof, the principal function of which is the conduct of foreign intelligence or counterintelligence activities, or the General Accounting Office.
FILING CHARGES WITH EEOC
Applicants for employment or employees who believe an employer has violated one of the rights enforced by EEOC as outlined above in either the hiring process or during their employment may seek remedy before EEOC. The following outline provides applicants and employees with the necessary steps for initiating and processing a charge of unlawful employment discrimination practices before EEOC.
Eligibility to File a Charge of Discrimination
• Any individual who believes that their employment rights have been violated may file a charge of discrimination with EEOC.
• In addition, an individual, organization, or agency may file a charge on behalf of another person in order to protect the aggrieved person’s identity.
How to File a Charge of Discrimination with EEOC
• A charge may be filed by mail or in person at the nearest EEOC office. Individuals may consult their local telephone directory (US Government listing) or call (800) 669–4000 (voice) or (800) 669–6820 (TTY) to contact the nearest EEOC office for more information on specific procedures for filing a charge.
• Individuals who need an accommodation in order to file a charge (e.g., sign language interpreter, print materials in an accessible format) should inform the EEOC field office so appropriate arrangements can be made.
• Federal employees or applicants for employment should consult EEOC’s fact sheet concerning Federal Sector Equal Employment Opportunity Complaint Processing.
Information Necessary to File a Charge of Discrimination with EEOC
• The complaining party’s name, address, and telephone number.
• The name, address, and telephone number of the respondent employer, employment agency, or union that is alleged to have discriminated, and number of employees (or union members), if known.
• A short description of the alleged violation (the event that caused the complaining party to believe that their rights were violated).
• The date(s) of the alleged violation(s).
Important Time Limits for Filing a Charge of Discrimination with EEOC
All laws enforced by EEOC, except the Equal Pay Act, require filing a charge with EEOC before a private lawsuit may be filed in court. There are strict and detailed time limits within which charges must be filed:
• A charge must be filed with EEOC within 180 days from the date of the alleged violation, in order to protect the charging party’s rights.
• This 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local antidiscrimination law. For ADEA charges, only state laws extend the filing limit to 300 days.
• These time limits do not apply to claims under the Equal Pay Act, because under the Equal Pay Act persons do not have to first file a charge with EEOC in order to have the right to go to court. However, because many EPA claims also raise Title VII sex discrimination issues, it may be advisable to file charges under both laws within the time limits indicated.
• To protect legal rights, it is always best to contact EEOC promptly when discrimination is suspected.
• Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing (available online at http://www.eeoc.gov).
State and Local Agencies’ Enforcement of State and Local Discrimination Laws
Many states and local government entities have antidiscrimination laws and agencies responsible for enforcing those laws. EEOC refers to these agencies as Fair Employment Practices Agencies (FEPAs). Through the use of “work sharing agreements,” EEOC and the FEPAs avoid duplication of effort while at the same time ensuring that a charging party’s rights are protected under both federal and state law.
• If a charge is filed with a FEPA and is also covered by federal law, the FEPA “dual files” the charge with EEOC to protect federal rights. The charge usually will be retained by the FEPA for handling.
• If a charge is filed with EEOC and also is covered by state or local law, EEOC “dual files” the charge with the state or local FEPA, but ordinarily retains the charge for handling.
After a Charge Is Filed with EEOC
The employer is notified that the charge has been filed. From this point there are a number of ways a charge may be handled.
• A charge may be assigned for priority investigation if the initial facts appear to support a violation of law. When the evidence is less strong, the charge may be assigned for follow-up investigation to determine whether it is likely that a violation has occurred.
• EEOC can seek to settle a charge at any stage of the investigation if the charging party and the employer express an interest in doing so. If settlement efforts are not successful, the investigation continues.
• In investigating a charge, EEOC may make written requests for information, interview people, review documents, and, as needed, visit the facility where the alleged discrimination occurred. When the investigation is complete, EEOC will discuss the evidence with the charging party or employer, as appropriate.
• The charge may be selected for EEOC’s mediation program if both the charging party and the employer express an interest in this option. Mediation is offered as an alternative to a lengthy investigation. Participation in the mediation program is confidential, voluntary, and requires consent from both charging party and employer. If mediation is unsuccessful, the charge is returned for investigation.
• A charge may be dismissed at any point if, in the agency’s best judgment, further investigation will not establish a violation of the law. A charge may be dismissed at the time it is filed, if an initial in-depth interview does not produce evidence to support the claim. When a charge is dismissed, a notice is issued in accordance with the law, which gives the charging party ninety days in which to file a lawsuit.
EEOC’s Resolution of Discrimination Charges
• If the evidence obtained in an investigation does not establish that discrimination occurred, this will be explained to the charging party. A required notice is then issued, closing the case and giving the charging party ninety days in which to file a lawsuit.
• If the evidence establishes that discrimination has occurred, the employer and the charging party will be informed of this in a letter of determination that explains the finding. EEOC will then attempt to work with the employer to develop a remedy for the discrimination.
• If the case is successfully resolved, or if a case has earlier been successfully mediated or settled, neither EEOC nor the charging party may go to court unless the resolution, mediation, or settlement agreement is not honored.
• If EEOC is unable to successfully resolve the case, the agency will decide whether to bring suit in federal court. If EEOC decides not to sue, it will issue a notice closing the case and giving the charging party ninety days in which to file a lawsuit. In Title VII and ADA cases against state or local governments, the Department of Justice takes these actions.
• Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing (available online at www.eeoc.gov).
Filing a Discrimination Lawsuit in Court
A charging party may file a lawsuit within ninety days after receiving a notice of a “right to sue” from EEOC, as stated above. Under Title VII, the ADA, and GINA, a charging party also can request a notice of “right to sue” from EEOC 180 days after the charge was first filed with EEOC and may then bring suit within ninety days after receiving this notice. Under the ADEA, a suit may be filed at any time sixty days after filing a charge with EEOC, but not later than ninety days after EEOC gives notice that it has completed action on the charge.
Under the EPA, a lawsuit must be filed within two years (three years for willful violations) of the discriminatory act, which in most cases is payment of a discriminatory lower wage.
Potential Remedies for Unlawful Employment Discrimination
The “relief” or remedies available for employment discrimination, whether caused by intentional acts or by practices that have a discriminatory effect, may include:
• back pay;
• hiring;
• promotion;
• reinstatement;
• front pay;
• reasonable accommodation; or
• other actions that will make an individual “whole.”
IN PLAIN ENGLISH
“To make a person whole” is to provide that individual with the benefit that person should have received if the improper act had not occurred.
Remedies also may include payment of:
• attorney fees,
• expert witness fees, and
• court costs.
Under most EEOC-enforced laws, compensatory and punitive damages also may be available where intentional discrimination is found. Damages may be available to compensate for actual monetary losses, for future monetary losses, and for mental anguish and inconvenience. Punitive damages also may be available if an employer acted with malice or reckless indifference. Punitive damages are not available against the federal, state, or local governments.
In cases concerning reasonable accommodation under the ADA, compensatory or punitive damages may not be awarded to the charging party if an employer can demonstrate that “good faith” efforts were made to provide reasonable accommodation.
An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their rights under the laws EEOC enforces and their right to be free from retaliation. Such notices must be accessible for persons with visual or other disabilities that affect reading.
The employer also may be required to take corrective or preventive actions to cure the source of the identified discrimination and minimize the chance of its recurrence, as well as discontinue the specific discriminatory practices involved in the case.
EMPLOYER DEFENSES TO TITLE VII, ADA, AND ADEA CLAIMS
Business Necessity. Business necessity is an employer’s defense related to a decision that is based on the requirements of the business and is consistent with other business decisions. To establish business necessity, the employer must prove that the practice is job related.
Bona Fide Occupational Qualification. Bona fide occupational qualification is when an employer is allowed to hire employees based on qualities or attributions that would be discrimination when considered in other contexts. An employer must prove that the bona fide occupational liability for potential discrimination is job related.
There are certain industries that are required to hire employees based on a quality that would in other terms be considered discriminatory. These industries include religious organizations and schools, the modeling industry, and the entertainment industry. If an employer is going to hire based on bona fide occupational qualifications, it is best to ensure that it really is necessary to the operation of the business by consulting an attorney who can provide a measure of objectivity.
Seniority Systems. The Age Discrimination Act was enacted in order to prohibit employers from discriminating against individuals because of their age. A seniority system is a way to determine employment advantages based on the length of service of employees. It should offer rewards and opportunities to employees who have been with the employer for longer periods of time.
It is unlawful for the seniority system to require older employees to retire because of their age. All employees are also entitled to the same amount of pay and to the same benefits.
A seniority system would only be considered discriminatory if it did not allow an employee to enjoy the benefits that come with seniority because of their gender, race, or religion. It is not meant to be discriminatory; it is a way to reward employees that have provided their services for a long period of time.
PROBATIONARY PERIODS
When an individual is hired, it is quite common for the individual to be subject to a probationary period. Care should be taken when drafting the employment contract not to state that the employee who successfully completes the probationary period will become “permanent,” because this might be interpreted as that the employee’s employment can never be terminated. Instead the agreement should provide that when the probationary period is successfully completed, the individual will become a “regular” employee. “Regular employee” should be defined as an individual who is entitled to certain additional benefits such as medical or dental insurance, life insurance, pension plans, vacation, and the like. (This subject is discussed more fully in Chapter 8 of this book.) It should be made clear that the employment remains “at-will” even if the employee becomes a “regular employee.”
The probationary period should only be for a reasonable amount of time, commonly three to six months, so the new employee’s work can be evaluated during that period. If the probationary period is too short, the evaluation is likely to be inadequate. On the other hand, if the probationary period is too long, the new employee may become unhappy with the relationship, which would not benefit that individual or the employer.
It is quite common that an explanation of the probationary arrangement be spelled out in an Employee Handbook, which is discussed in detail in Chapter 6 of this book.
INDEPENDENT CONTRACTORS IN A GIG ECONOMY
While an “independent contractor” is different from an employee, the exact definition of independent contractor is not set in concrete. To prevent any unwanted surprises, it is essential to define the exact business relationship between the employee and the employer prior to beginning work.
“Independent Contractor” Defined
There are three different sources in which the classification of independent contract can be found. What makes an individual an independent contractor has been outlined by common-law principles, the FLSA, and finally, decisions in courts.
The IRS and many states have adopted common-law principles of agency to define an independent contractor. These rules focus primarily on the level of control that an employer has over a service or product, meaning, whether or not the employer actually defines what is being performed and the way that task will be accomplished.
Common-law principles of agency furthermore define independent contractor status by the method of compensation. If a person is on an employer’s payroll and receives a steady paycheck, clearly that person is intended by the parties to be an “employee” rather than an “independent contractor,” who likely receives payment in a different manner. Other considerations relevant to identifying someone as an independent contractor may include:
• If the worker supplies their own equipment, materials, and tools;
• If all necessary materials are not supplied by the employer;
• If the worker can be discharged at any time and can choose whether or not to come to work without fear of losing employment;
• If the worker controls the hours of employment, thus indicating they are acting as an independent contractor; and
• Whether the work performed is temporary or permanent.
Again, the nature of the work performed will assist in defining the relationship. When work is considered integral to the employer’s business, it is more likely that the person is an employee. On the other hand, work that is temporary and nonintegral may imply independent contractor status.
In an attempt to interpret provisions of the FLSA and discern between employee and independent contractor status, some courts and federal agencies have employed the “economic realities test.” That test looks at the dependence of the worker on the business for which the individual performs work. If a person gains a large portion of their salary from that business, chances are that person qualifies as an employee. The test also includes such factors as the level of skill employed, the integral or nonintegral nature of the work, intent of the parties, and payment of Social Security taxes and benefits.
Outside of the FLSA, courts sometimes ask the following questions to determine the status of a work relationship:
• What is the degree of control over work and who exercises that control?
• What is each party’s level of loss in the relationship?
• Who has paid for materials, supplies, and/or equipment?
• What type of skill is required for work?
• Is there a degree of permanence?
• Is the worker an integral part of the business?
These courts also use the “right to control” test. When the hiring party controls the way work is carried out and a product is delivered, the relationship between the parties is that of an employer/employee. If, on the other hand, an employer does not have authority over how a party accomplishes the work but simply give requests or provides an outline, the relationship between the parties is that of hiring party/independent contractor.
EMPLOYER TAX LIABILITY
An employer’s tax liability is determined by the worker’s employment status. When a worker is an “employee,” employers must pay state and federal unemployment tax, Social Security tax, and workers’ compensation/disability premiums to a state insurance fund. When a worker is an “independent contractor,” the hiring party is not required to make any of these payments.
Should employers incorrectly define a worker as an independent contractor, they may find themselves liable for past taxes, including FICA and federal unemployment tax. Safe harbors, which allow employers to use the independent contractor status and avoid penalties, include prior practice of treating similar employees as independent contractors and the existence of a prior IRS audit where no taxes were required to be paid.
In conclusion, there are certain factors that define whether a worker is an independent contractor, such as not relying on the business as the sole source of income, working at their pace as defined by an agreement, being ineligible for employer-provided benefits, and retaining a degree of control and independence over the work that is being performed. While the independent contractor is their own boss, work remains within the parameters of whatever oral or written contract exists between the employer and the person performing the work. An employee, on the other hand, relies on the business of the employer for a steady income, gives up elements of control and independence over the work being performed, and in turn is eligible for certain benefits and works within the established rules of the workplace.
TEMP AGENCIES AND EMPLOYEES
Occasionally employers will need the assistance of temporary employees for the purpose of assisting for a short period of time or for assisting with a specific limited project. In situations such as this, it is appropriate to hire a temporary employee rather than a “regular employee” who may not be needed after the limited project is completed. While it is certainly possible to advertise for a temporary employee, as discussed in Chapter 1 of this book, there are temporary agencies available that focus on obtaining these types of employees as well.
A temporary employee should be interviewed in the same manner as a “regular employee,” even though the temporary employee’s position is limited. This is because the temporary employee will likely have the same types of restrictions and limitations discussed earlier in this chapter. These would include, for example, noncompetition restrictions, non-solicitation restrictions, and intellectual property restrictions. The same care and diligence should be devoted to hiring temporary employees as is used to hire “regular” employees. The only difference between the two types of employees is the fact that temporary employees will only be employed for a limited time.
If a company is presented with a contract by an employment agency, whether a temp agency or a regular employment agency, then that contract should be reviewed by an experienced attorney before it is signed. This is because contracts with agencies may have provisions that could be problematic for employers in the future, and it is better to be prudent when the relationship begins rather than unhappy when attempting to terminate it. Issues that can arise include an agreement that the employer not hire individuals without paying the agency a commission even if the agency is not responsible for obtaining the new employee. Other problems that could result relate to situations in which the agency receives a commission for individuals who have not been properly screened despite the understanding that screening is important.
CONCLUSION
From a careful reading of this chapter, it should become apparent to the reader that there are multiple considerations for employees and employers alike during both the preemployment and initial phases of the employment relationship including: (1) preparing a useful employment application, (2) interviewing candidates for positions, and (3) hiring new employees, all of which are key to the establishment of successful, long-term relationships. Many of those considerations are essentially practical in nature, such as designing a useful employment application for a particular enterprise and how to conduct meaningful interviews of prospective employees, both of which are necessary tools to assist an employer in its ultimate search and hiring of the best qualified candidates for particular positions.
Once employment begins, however, there are still further considerations that need to be dealt with in that phase of the relationship including: (1) construction of a useful employee handbook to provide new employees a “road map” with which to navigate the relationship over the years ahead; (2) providing them with the necessary “onboarding” prerequisites to successfully begin their employment journey; and (3) carefully crafting written job descriptions to avoid confusion and potential misunderstandings during the relationship.
Throughout both the preemployment and employment phases of the relationship, there are a myriad of unavoidably complex federal, state, and local rules which must be adhered to, including but not limited to, (1) Title VII, (2) the EPA, (3) the ADEA, (4) Titles I and V of the ADA, (5) Sections 501 and 505 of the Rehabilitation Act of 1973, (6) Title II of GINA, and (7) the CRA, all of which must be scrupulously complied with by the employer in order to avoid becoming ensnared in costly, time-consuming, and distracting litigation. In order to make both the preemployment and employment phases of the employment relationship run smoothly and efficiently so the enterprise may ultimately succeed, it is necessary for employers to closely coordinate its plans, routine activities, and consequential actions in the foregoing respects with competent employment counsel, as has been repeatedly recommended by the authors throughout Chapter 2 and others of this book.