The Hiring Process: More Than Just the Resume The past two decades have been fraught with pitfalls in the hiring process. Legal constraints, in particular, have affected virtually every aspect of the process, from recruitment through interviewing, screening, testing, selection, and the job offer itself.
Here's a checklist for supervisors and employers of the core statutes, regulations, and issues that affect the hiring process: ADEA, local, and state age protection laws; the Rehabilitation Act of 1973 and local and state handicap protective laws; Title VII of the Civil Rights Act of 1964 and the Pregnancy Amendments; The National Labor Relations Act; Executive Order 11246 (The Affirmative Action Order); The Fair Labor Standards Act (Equal Pay Act); comparable worth issues; The Immigration Reform and Control Act (IRCA); EEOC Guidelines on Employee Selection; drug and alcohol testing; AIDS; polygraph testing; privacy and confidentiality; defamation; negligent hiring; implied contracts; smoking in the workplace; trade secrets; and access to employee records.
In addition to these, new developments occur on a regular basis. One unsettling development that occurred this year is the United States Supreme Court's decision in Watson versus Fort Worth Bank and Trust. The Watson ruling may impose greater scrutiny on subjective personnel decisions than has been required in the past, and it may eliminate the need for a person to show that an employer or supervisor purposefully discriminated against him or her.
Subjective hiring and
In Watson, the United States Supreme Court for the first time addressed the question of whether a "disparate impact analysis" may be applied to subjective promotion criteria. (A disparate impact analysis is a method that shows statistically the negative effects of a facially neutral employment action--for example, a supervisor's decision to promote or hire someone). In other words, the court ruled for the first time that an individual or employee could apply statistics to a claim of less favorable treatment where subjective criteria have been used.
Here's how the Watson case developed: A black employee was rejected in favor of white applicants for four promotions to supervisory positions. The bank had not developed formal selection criteria for the positions. Instead, the bank relied on the subjective judgment of white supervisors. The plaintiff alleged that the promotion policies had unlawfully discriminated against blacks generally and her personally in violation of Title VII of the Civil Rights Act of 1964.
Until Watson, each of the Supreme Court's disparate impact analysis decisions involved standardized employment tests or criteria such as written aptitude tests, height and weight requirements, written tests of verbal skills, rules against employing drug addicts, and written examinations. Obviously, a plaintiff could use statistics in these cases. But for hiring and promotion decisions that were based on personal judgment or subjective criteria, the court previously held that they should be evaluated by using the disparate treatment theory--that is, by proving an employer or supervisor intentionally discriminated against the plaintiff. …