1. The Employment Environment Jody Blanke Distinguished Professor of Computer Information Systems and Law Mercer University

2. Recruitment  Common Law Misrepresentation and Fraud  Application of Regulation to Recruitment Practices Advertisements  e.g., “recent college grads” Word-of-mouth recruiting  EEOC v. Chicago Miniature Lamp Works, p. 143  EEOC v. Consolidated Service System, p. 195 Promoting from within Neutral solicitation 2

3. Information Gathering and Selection  The Application Process  The Interview forbidden questions, e.g., p. 149  Background or Reference Check Resume fraud  e. g.,George O’Leary Social media  e. g.,Facebook, LinkedIn Potential liability for providing references 3

4. Information Gathering and Selection  Negligent Hiring Employer strategies p. 156-57 Tips for employer protection p. 158  “After-Acquired Evidence” Defense in Wrongful Termination Suits 4

5. Testing  Legality of Eligibility Testing e.g., intelligence tests, physical tests, eye exams Title VII exempts professionally developed, validated employment tests of eligibility from disparate impact claims  in order to be legally validated, an employer must show that the test is job-related and consistent with business necessity e.g., math test for a cashier e.g., English competency exam for customer support position 5

6. Test Validity  Criterion-Related Validation the test must be shown to accurately predict job performance as evidenced by the ability to do the job e.g., a simulated exercise to predict job performance  Content Validation the test specifically measures performance of certain position requirements  Construct Validation examines the psychological make-up of the applicant and compares it to those traits necessary for job performance 6

7. Test Validity  Job-Related Requirement In addition to validation, an employer must show that the specific trait being tested is job-related  e.g., Evans v. City of Evanston, physical agility tests for firefighter positions had a disparate impact on females, but were rationally related to a legitimate purpose  e.g., Griggs v. Duke Power Co., intelligence tests were not shown to be related to job performance 7

8. Test Validity  Integrity and Personality Tests must be related to job performance  Physical Ability Tests usually a simulated task related to job performance  e.g., tests for firefighters involve dragging objects or climbing stairs  Medical Exams are permitted post-offer, pre-employment for the purpose of ascertaining whether the employee can perform the job 8

9. Testing  Legality of Ineligibility Testing e.g., drug tests, polygraphs  Federal Employee Polygraph Protection Act of 1988 because of inaccuracy, polygraphs are generally prohibited exceptions for security service companies, controlled substances, and government employees, p. 169  Many states also prohibit polygraphs 9

10. Testing  Drug-Free Workplace Act of 1988 Applies to federal employees National Treasury Employees Union v. Rabb, p. 197  The Genetic Information Nondiscrimination Act of 2008  Private Employers Have Also Implemented Drug Tests mandatory testing “probable cause” testing random testing 10

11. Performance Appraisals and Evaluations  Disparate Impact an appraisal system with a disparate impact would be subject to high scrutiny by the courts might by determined by “four-fifths” rule  Disparate Treatment an appraisal system might use different criteria for a protected class  e.g., Hopkins v. Price Waterhouse, p. 181  Defamation  Negligent Performance Evaluations  e.g., Rowe v. General Motors, p. 183-84  Discipline 11