Kristine E. Kwong, Esq. [email protected] PITFALLS OF SETTING MINIMUM QUALIFICATIONS.

Kristine E. Kwong, [email protected]

PITFALLS OF SETTING MINIMUM QUALIFICATIONS

JOB DESCRIPTIONPurpose of a Job Description

Communication of Duties

Sets Expectations of Work

Aids Employer in Recruitment

Informs Employee of Duties

JOB DESCRIPTIONKey Elements

Essential Duties

Physical and/or Certification Requirements

Education

Compensation

JOB DESCRIPTIONQualifications for Position

Physical

Educational

Skill-based

Combination of the above

JOB DESCRIPTIONMinimum Qualifications 

Lowest Threshold to be Considered for Candidacy

Used as a Tool to Filter Out Applicants Not Capable of Performing the Essential Job Functions

JOB DESCRIPTIONS COLLIDING WITH THE LAWTitle VII of the 1964 Civil Rights ActCalifornia Fair Employment & Housing ActProhibits Unlawful Employment Practices

Failing or Refusing to Hire Discharging Discriminating with Respect to Compensation, Terms, Conditions or Privileges of Employment

Failure to Promote

UNLAWFUL EMPLOYMENT PRACTICESRaceColorReligionNational OriginSexSexual OrientationSexual IdentityAge

WAYS OF PROVING DISCRIMINATIONDirect Evidence

Indirect Evidence

Disparate Impact

WAYS OF PROVING DISCRIMINATIONDirect Evidence

Discriminatory Intent Adverse Employment Action

Indirect Evidence No Smoking Gun Evidence

DISPARATE IMPACT THEORYWhat 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 RequiredIntent 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

DISPARATE IMPACT THEORYSubjective Employment Criteria (i.e.,

Personality)

Objective or Standardized Tests

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

DISPARATE IMPACT THEORYExamples 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

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

DISPARATE IMPACT – RELIEF AVAILABLE

Equitable Relief

Injunctive Relief

DISPARATE IMPACTPlaintiff’s Burden of ProofAn Employment Practice Policy or

QualificationSignificant Adverse Effect on a Protected

ClassThe 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

DISPARATE IMPACT

Employer’s Defense Burden

Attack Plaintiff’s Statistical Proof

The Minimum Qualification or Practice is Job-Related and Consistent with Business Necessity

DISPARATE IMPACTPlaintiff’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

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

TEST CONTENTSFactors 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

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

USE OF CRIMINAL RECORDSCriminal 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 ConvictionsUse 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

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

DISPARATE IMPACT THEORYThree 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