44.312 Security Management

home page > Unit 5: Recruitment & selection

Employment Laws (continued)

• court can follow requirement in Uniform Guidelines on Employee Selection Procedures, which require employer to validate selection procedures that have adverse impact on protected groups. If selection rate for protected groups is less than 4/5 of group with highest selection rate, probably regarded as evidence of adverse impact.
• Permissible discrimination:
  There are some permissible discriminatory employment policies: allowed "if the employer can prove that its employment actions were related to a bona fide occupational qualification or if the discriminatory practice was related to a business necessity:
  • Bona fide Occupational Qualifications:
    "Limited exceptions to Title VII discrimination laws allowing a company to hire employees based on their religion, gender, or national origin where those factors are 'reasonably necessary to the normal operation of that particular business or enterprise.' The law does not permit religion-based, gender-based or national origin-based differences in pay to those holding the same job."
    
    A company must admit that the practices are discriminatory but argue they are necessary or justified -- otherwise their business operations would be adversely affected
    In the criminal justice system, there are some permissible discriminatory standards, such as age, size, weight, vision. These do not apply to racial discrimination
  • Businesss necessity defense (BND)
    applies to situations involving disparate impact. It's less restrictive than the bona fide defense, applying to all protected groups, including race. "The key in using the BND is that the practice is essential to the continued success of the business."
    • employers must prove:
      • ultimate business goal employer seeks to achieve through the practice is essential to the business
      • the tasks the practice measures are essential to achieve that business goal
      • workers selcted for the positions in question must be able to perform the tasks
      • practice selected is necessary to measure ability to perform the tasks
    • can get very complex: one example that was judged permissible: requiring English-speaking workers on oil-drilling operations because of the hazardous nature of the work.
• Title VII's impact on recruitment and selection
  • can't use advertising practices that "indicate prohiibited preference, limitation, specification, or discrimination ...except when these bases are a bona fide occupational qualifcation for employment" For example, relying soley on word-of -mouth wouldn't be acceptable, because some groups would be excluded.
  • Selection tools can also be a problem: you shouldn't use questions that directly inquire about protected class status, such as race, age, and religious beliefs.
  • questions that may be innocent or neutral may have a disparate impact on screening out disproproportionate number of individuals in a porotected class, such as women.
  • can't ask about an applicant's arrest record, but can ask if appllicant has been convicted of a crime or lead guilty or no contest.

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