1. Kristine E. Kwong, Esq. k.kwong@mpglaw.com PITFALLS OF SETTING MINIMUM QUALIFICATIONS

2. JOB DESCRIPTION Purpose of a Job Description  Communication of Duties  Sets Expectations of Work  Aids Employer in Recruitment  Informs Employee of Duties

3. JOB DESCRIPTION Key Elements Essential Duties Physical and/or Certification Requirements Education Compensation

4. JOB DESCRIPTION Qualifications for Position  Physical  Educational  Skill-based  Combination of the above

5. JOB DESCRIPTION Minimum Qualifications Lowest Threshold to be Considered for Candidacy Used as a Tool to Filter Out Applicants Not Capable of Performing the Essential Job Functions

6. JOB DESCRIPTIONS COLLIDING WITH THE LAW Title VII of the 1964 Civil Rights Act California Fair Employment & Housing Act Prohibits Unlawful Employment Practices  Failing or Refusing to Hire  Discharging  Discriminating with Respect to Compensation, Terms, Conditions or Privileges of Employment  Failure to Promote

7. UNLAWFUL EMPLOYMENT PRACTICES Race Color Religion National Origin Sex Sexual Orientation Sexual Identity Age

8. WAYS OF PROVING DISCRIMINATION Direct Evidence Indirect Evidence Disparate Impact

9. WAYS OF PROVING DISCRIMINATION Direct Evidence  Discriminatory Intent  Adverse Employment Action Indirect Evidence  No Smoking Gun Evidence

10. DISPARATE IMPACT THEORY What is the Disparate Impact Theory? Facially Neutral Employment Practice Deemed Discriminatory Without Evidence of the Employer’s Subjective Intent to Discriminate Discriminatory Intent is Not Required Intent to Avoid Disparate Impact is Viewed as the Intent to Discriminate  Disregarding the Results of a Valid Job Selection Process (i.e., Performance Tests) for Failure to Yield a Racially Diverse Group of Candidates is Intentional Discrimination Against the Successful Candidates Based on Their Race  May Disregard If You Can Show That the Test Was Deficient and That Discarding the Results is Needed To Avoid Violating Disparate Impact Provision

11. DISPARATE IMPACT THEORY Subjective Employment Criteria (i.e., Personality) Objective or Standardized Tests

12. DISPARATE IMPACT THEORY Examples of Objective Criteria that May Have Discriminatory Impact: Written Aptitude Tests Written Tests of Verbal Skills Height and Weight Requirements Rules Against Employing Drug Addicts

13. DISPARATE IMPACT THEORY Examples of Subjective Criteria That May Have Discriminatory Impact:  Hiring Decisions Based on Personal Knowledge of Candidates or Recommendations  Decision to Fire Individuals Who are Said Not to Get Along with Co-workers  Decision Not to Rehire Individual Who Engaged in Criminal Acts Against the Employer or Are Laid Off

14. CHALLENGE TO SPECIFIC EMPLOYMENT PRACTICES The Plaintiff Must Identify Each Personnel Practice Which is Neutral on Its Face as Having Caused the Disparate Impact Plaintiffs Cannot Attack Overall Decision-Making Process Plaintiffs Must Identify the Particular Element or Practice Within That Process Causing Adverse Impact

15. DISPARATE IMPACT – RELIEF AVAILABLE Equitable Relief Injunctive Relief

16. DISPARATE IMPACT Plaintiff’s Burden of Proof An Employment Practice Policy or Qualification Significant Adverse Effect on a Protected Class The Impact of the Minimum Qualification with Respect to the Terms, Conditions or Privileges of Employment of the Protected Class The Employee Population in General is not Affected by the Policy to the Same Degree

17. DISPARATE IMPACT Employer’s Defense Burden Attack Plaintiff’s Statistical Proof The Minimum Qualification or Practice is Job-Related and Consistent with Business Necessity

18. DISPARATE IMPACT Plaintiff’s Response to Defense Business Necessity  Plaintiff Must Show an Alternate Employment Practice (Other Tests, Selection Device, Minimum Qualification) without a Discriminatory Effect would Also Serve the Employer’s Legitimate Interests and the Employer Refuses to Adopt It  Plaintiff Must Show that Another Test or Selection Device would also Serve the Employer’s Legitimate Interests and Have a Lesser Adverse Impact Upon a Protected Class

19. DISPARATE IMPACT Test Validation Factors Court Consider in Determining if a Test has been Validated:  Testimony by Experts in the Field of Test Validation  Guidelines Established by the EEOC Regarding Job Relatedness

20. TEST CONTENTS Factors to Consider to Determine Validity of an Employment Test or Minimum Qualification  Suitable Job Analysis  Reasonable Competence in Constructing the Test  Content of the Test is Related to Content of the Job  Content of the Test is Representative of the Content of the Job

21. DISPARATE IMPACT Defense Response to Challenge to Tests:  Employer must Show the Test is Related to Safe and Efficient Job Performance and was a Business Necessity (a Test’s Required Skills and Physical Requirements of a Specific Job)  Plaintiff Can Still Prevail by Showing There is a Less Discriminatory Alternative

22. USE OF CRIMINAL RECORDS Criminal Records May Have Disproportionate Impact on People of Color but Does Not Violate Title VII where Business Necessity is Shown California Law:  Prohibits Employer Inquiries About Arrests and Detentions That Did Not Result in Convictions Use of Statistical Evidence as Proof:  Plaintiff will Try to Use Statistical Disparities to Show Disparate Impact  Disparity Must be Large Enough That It Is Unlikely to Have Occurred at Random

23. JOB QUALIFICATIONS AS BUSINESS NECESSITY Employer Must Show Job Qualification Genuinely Predicts Which Successful Job Performance or Important Elements of Work Behavior That Comprise the Job in Question Plaintiff Has the Burden of Producing an Alternative Qualification that Meets the Employer’s Legitimate Business Needs

24. DISPARATE IMPACT THEORY Three Categories Disparate Impact Theory Has Been Applied:  Scored Tests  Non-Scored Objective Criteria  Education, Experience, Height & Weight Restrictions, Criminal Records, Credit Records Subjective Criteria:  Oral Interviews  Supervisor Recommendations