HIRING AND SELECTION Enforcement Priorities and Litigation Trends

Transcription

1 HIRING AND SELECTION Enforcement Priorities and Litigation Trends (717) ENFORCEMENT PRIORITIES AND LITIGATION TRENDS IN HIRING Recruitment, selection, and hiring decisions Claims can arise in many different ways Highly regulated area Simple innocent missteps can create liability Opportunity for both individual claims and classbased or systemic claims Know the rules, have a plan, and make sure everyone involved in the process knows both the rules and plan 2

2 EEOC ENFORCEMENT PRIORITIES Strategic Plan for FY Reaffirmed EEOC s commitment to pursue systemic discrimination claims Priority eliminate barriers in recruitment and hiring Targeting both class based intentional recruitment and hiring discrimination and facially neutral policies that have disparate impact 3 EEOC ENFORCEMENT PRIORITIES EEOC continues to pursue class based failure to hire cases alleging intentional discrimination Series of nationwide pattern or practice hiring cases filed by EEOC in recent years Pursued claims alleging failure to hire due to gender, race, age, disability, etc. 4

3 EEOC ENFORCEMENT PRIORITIES EEOC also continues to pursue disparate impact claims based on facially neutral employment practices Alleged race discrimination based on use of criminal and credit history Challenged employer testing practices Mixed results, but undeterred EEOC v. Freeman (4th Cir. 2015) 5 OFCCP ENFORCEMENT PRIORITIES Jurisdiction over federal contractors and subcontractors Increasing focus on steering claims Steering practice of placing or directing applicants into certain, less favorable job classifications Can result in pay discrimination OFFCP believes it affects women and minorities 6

4 OFCCP ENFORCEMENT PRIORITIES In FY 2013, OFCCP settled 42 hiring cases Example 2014 settlement with manufacturing company Settled claims involving 5,557 African Americans Agreed to pay $1 million in back pay, plus interest 7 DISPARATE IMPACT CLAIMS IN HIRING Not limited to EEOC initiated litigation No need to prove intentional discrimination Use statistics to show that facially neutral test or requirement has a disproportionate negative impact on certain group(s) Is selection procedure job related and consistent with business necessity? Any less discriminatory alternatives? 8

5 TRANSGENDER, GENDER IDENTITY, AND SEXUAL ORIENTATION EEOC considers discrimination on the basis of LGBT status as sex discrimination A number of courts have agreed with this position EEOC increasingly pursuing LGBT related litigation Priority enforcement item Be aware of protected status despite absence of express statutory provisions 9 HIRING AND SELECTION Developing a Strategy Before Hiring (717) along@mwn.com

6 DEVELOPING A HIRING STRATEGY Focus on planning and making critical decisions before beginning the hiring process All involved in recruitment, selection, and hiring must be aware of legal requirements and organization s overall hiring strategy Preparation is key 11 DEVELOPING A HIRING STRATEGY Planning and approval Job description Staffing level decisions Job qualification criteria Sources of candidates Applicant pool Job posting Outreach posting Newspaper classified ads and internet postings 12

7 DEVELOPING A HIRING STRATEGY Screening and selection Employment application form Interviews Employment related testing Criminal and other background checks Drug testing Physical examination/medical inquiries 13 DEVELOPING A HIRING STRATEGY Offer Offer approval Documentation Post offer process Employment eligibility verification 14

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