Posted: April 24th, 2025

Discussion Management Law

please discuss, based on the material given, your experience and your opinion on the following scenarios:

1) Chapter 4: Opening Scenario 3- Lominy
2) Chapter 7: Opening Scenario 2 – Oliverio

Express your views on each of the scenarios while using what you’re learning in the chapters

Employment Law for Business

Chapter 7

National Origin Discrimination

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Learning Objectives 1

Describe the impact and implications of the changing demographics on the American workforce.

Define the prima facie case for national origin discrimination under Title VII.

Explain the legal status surrounding “English-only policies” in the workplace.

Learning Objectives 2
Describe a claim for harassment based on national origin and discuss how it might be different from one based on other protected classes.
Identify the difference between citizenship and national origin.
Explain the extent of coverage of the Immigration Reform and Control Act.
3

Statutory Bases
Statutory basis for protection against national origin discrimination is presented in Exhibit 7.1, “Legislation Prohibiting National Origin Discrimination.” These statutes include section 703(a) of Title VII of the Civil Rights Act of 1964 and 274A and B of the Immigration Reform and Control Act of 1986.
Additional direction can be found in the EEOC’s Enforcement Guidance on National Origin Discrimination.
4

Introduction
United States: a melting pot, stew or salad bowl of different cultures?
National origin included in Title VII’s list of protected classes.
Seeks to ensure that employers do not make employment decisions based on employees’ or applicants’ country of origin.
Long tradition of bias against more recent immigrants. Every new immigrant group has had to shoulder its way into the mainstream of American life.
‘New Colossus’ text on Statue of Liberty is aspirational.
Recent claims trend overlaps with race, but distinct issues, case histories.
5

The Changing Workforce
2017: 44.4 million immigrants in US (13.6%) population.
27.4% Asian,
25.3% Mexican,
25.1% other Latin America,
13.2 % European/Canadian,
17.4% of total US labor force.
Higher workforce participation rate for men; lower for women.
Substantial wage gap at lower education levels, attenuates at higher degree levels.
E E O C Complaint volume has risen in this century, peaking in 2011.
6

Realities About National Origin Discrimination
Exhibit 7.2: Realities about National Origin Discrimination.
“Citizenship” and “national origin” are not synonymous.
No matter the national origin of a restaurant, it likely will still be required strictly to abide by Title VII nondiscrimination principles in hiring its waitstaff.
The EEOC considers English-only rules applied at all times presumptively discriminatory, although courts have not always agreed.
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Regulatory Overview, generally
National origin discrimination protection per Title VII:
Similar to other protected groups, including with regard to employment decisions, segregation or classification of workers that would deprive them of the privileges, benefits, or opportunities of employment.
‘National origin’ defined similarly to ethnicity.
Disparate Treatment and Disparate Impact claims.
Particular issues, for example, exclusive English Only rules may appear neutral, but impact ethnic groups differently.
‘English Only’ presumptively discriminatory per E E O C; some courts have disagreed, based on business justification of policy in context.
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Regulatory Overview: prima facie case
Employee’s prima facie case of national origin discrimination:
They are a member of a protected class.
Thewy were qualified for the position for which they applied or in which they were employed.
Employer made an employment decision against this employee or applicant.
Position was filled by someone who was not a member of the protected class.
Note: each element described in following slides .
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Member of the Protected Class 1
‘National origin’ encompasses:
Employee’s place of birth.
Ethnic characteristics or origins.
EEOC Guidelines: “discrimination because an individual (or their ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.”
Note 1: national origin discrimination can include discrimination by members of the same national origin group against each other.
Note 2: protection against discrimination based on country of origin, not on country of citizenship. Citizenship not a protected characteristic.
Case: EEOC v. MVM Inc.
Case: Espinosa v. Farah Manufacturing Co.
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Member of the Protected Class 2
‘National origin,’ following may also serve as national origin bases:
Is identified with or connected to a person of a specific national origin, such as when someone suffers discrimination because she or he is married to a person of a certain ethnic heritage.
Is a member of an organization that is identified with a national group.
Is a participant in a school or religious organization that is affiliated with a national origin group.
Has a surname that is generally associated with a national origin group.
Is perceived by an employer to be a member of a particular national origin group, whether or not the individual is in fact of that origin (mistake is no defense).
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Qualification/B F O Q’s
As always, Claimant must show that s/he meets the job’s requirements.
No employer ‘accommodation’ required.
B F O Q exception available but strictly construed (limited) by E E O C.
Customer, client, or coworker discomfort or preference in terms of national origin (for example, ethnic restaurant waitstaff) may not be relied upon by the employer.
National Origin and national citizenship are not same – citizenship not protected category.
Case: Espinoza v. Farah Mfg. Co. (citizenship).
Case: Cortezano v. Salin Bank (case based on ‘alienage’/undocumented status of claimant’s spouse).
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English Fluency as a qualification, and Language Restrictions 1
Fluency requirements, accent issues may go to qualifications; “English-only” policies have become increasingly relevant in the workplace.
Claims may be based on disparate treatment, disparate impact or harassment/hostile work environment.
No Supreme Court rulings – lower courts vary as to legitimacy.
Case: Garcia v. Spun Steak Co.
E E O C preference for policies tailored to needs of specific workplace.
Blanket fluency requirements applying to all jobs without business justification disfavored.
Worktime vs. break time distinction.
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English Fluency as a qualification, and Language Restrictions 2
E E O C on ‘business necessity’ of English-only:
For communication with customers co-workers or supervisors who only speak English
In emergencies or other situations in which workers must speak a common language to promote safety,
For cooperative work assignments for which the English-only rule is needed to promote efficiency, for example, a taxi company permitted to have such a rule to avoid dispatch confusion
To enable a supervisor who speaks only English to monitor the performance of an employee whose job duties require communication with co-workers or customers.
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English Fluency as a qualification, and Language Restrictions 3
Courts give deference to EEOC guidance but are not required to follow it. Courts have allowed restrictions that were based on sound business interests.
Workplace safety.
Supervisory control and efficiency.
Customer, co-worker relations.
Safe harbor: examine, stay within business justification as to breadth of application.
Note: recent state legislation: CA – English-only if business necessity, ‘narrowly tailored and limited to on-duty times’.
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Adverse Employment Action and Dissimilar Treatment
Adverse employment action: Any action or omission that takes away a benefit, opportunity, or privilege of employment from an employee. Disparate Treatment or Disparate Impact of ‘neutral’ policies both qualify.
Prima Facie case triggers employer’s requirement to defend, based on Legitimate Non-Discriminatory Reason (LNDR) or a BFOQ.
Case: Vega v. Homestead Union School District.
Claimant rejoinder re pretext, as described in Chapter 2.
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National Origin-based Harassment
Claims have sharply increased since late 1990s.
Familiar prima facie case elements: unwelcome, based on national origin, so severe of pervasive as to change terms of employment, company involvement or toleration (‘knows or should have known’).
Common incidents – Ethnic slurs, workplace graffiti, other offenses based on presumed employee traits.
Key concern is whether a reasonable person would find the conduct offensive and/or hostile.
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National Origin-based Harassment: EEOC Guidance Examples
Hostile Work Environment Based on National Origin That Violates Title VII
Muhammad, who is of Pakistani descent, works for Motors, a large automobile dealership. His coworkers regularly call him “camel jockey,” “the local terrorist,” and “the ayatollah” and intentionally embarrass him in front of customers by claiming that he is incompetent. The EEOC finds reasonable cause to believe that the constant ridicule has made it difficult for Muhammad to do his job and has created a hostile work environment in violation of Title VII.
Conduct That Does Not Create a Hostile Work Environment Based on National Origin
George, an immigrant of Haitian descent, was hired by Shipping Company as a dockworker. On his first day, George dropped a carton, prompting Bill, a coworker, to yell at him. The same day, George overheard Bill telling a coworker that foreigners are stealing jobs from Americans. Two months later, Bill confronted George after he argued with another coworker about assignments. Bill called George “lazy” and mocked his accent. Although Bill’s conduct was based on national origin, standing alone, these incidents were not sufficiently severe or pervasive to create a hostile work environment in violation of Title VII.

Guidelines on Discrimination Because of Religion or National Origin
OFCCP Guidelines on Discrimination Because of Religion or National Origin: federal agencies or contractors have affirmative duty to prevent discrimination based on religion or national origin.
8 requirements, including internal communication, workforce analysis and enhanced recruitment efforts (page 361).
Provisions include the following ethnic groups:
Eastern, Middle, and Southern European ancestry, including Jews, Catholics, Greeks, and Slavs.
Excluded because of coverage elsewhere.
Blacks, Spanish-surnamed Americans, Asians, and Native Americans.
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Middle Eastern Discrimination After September 11, 2001
“Code Z” established by EEOC:
Created to designate complaints of ‘backlash discrimination’ from individuals who are perceived to be Muslim, Sikh, Arab, Middle Eastern, or South Asian.
Key discrimination issues:
Different treatment because of religious attire for example, hiring discrimination by Abercrombie & Fitch re applicant’s hijab.
Ethnic harassment, which may unfairly relate to security concerns.
More stringent security checks or other pre-employment requirements.
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Latinx Discrimination: Impact of Socio-Political Environmental Factors
Increase in Latinx discrimination concern after harsh 2016 campaign rhetoric, rapid increase in hate-crime targeting and southern border mistreatment.
Widespread perception among this growing workforce segment of pressure to conform, repress heritage.
Multiple negative impacts transcend legalities, to lost sales, productivity and morale, recruitment opportunities.
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Citizenship, and the Immigration Reform Control Act 1
Non-US citizens are often restricted from access to certain government or other positions by statute.
“Political function” exception.
Case: Espinoza v. Farah Manufacturing Company.
Note: ‘citizenship’ must not be ‘pretext’ for national origin discrimination.
Immigration Reform and Control Act (IRCA, 1986).
Unlawful to knowingly hire, recruit, or refer aliens not authorized to work in the United States.
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Citizenship, and the Immigration Reform Control Act 2
Employers not subject to Title VII’s prohibitions because of small size (<15) may still be covered by IRCA’s anti-discrimination provisions.
Employers with 4 to 14 employees are prohibited from discriminating on the basis of national origin.
Language proficiency as built-in BFOQ.
Employers with 4 or more employees may not discriminate on the basis of citizenship.
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Undocumented Workers 1
Undocumented workers likely comprise 4 – 5% of U S workforce.
I R C A (enacted 1986) made it unlawful for employers to ‘knowingly’ hire, recruit, or refer for a fee to non-citizens who are not authorized to work in U S.
No ‘ostriches’: knowledge ‘may fairly be inferred from facts/circumstances’.
Employers required to ‘verify’ all newly hired employees using a Form I-9 (retention required, personal liability risk).
‘No-match’ issues – discrepancies between documents.
“No-match” workers – Workers who used false social security numbers.
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Undocumented Workers 2
DoJ advice to employers receiving SSA ‘no-match’ letters:
Check match information vs. personnel records to eliminate administrative errors – no automatic terminations.
Inform affected employees, seek numbers confirmation.
Advise employees to correct discrepancies with SSA.
Uniform rules for all employees; reasonable time to correct data.
Submit corrections to SSA.
Enforcement of I R C A:
Investigations via random I-9 form audits and compliance inspections by Immigration and Customs Enforcement (I C E).
25

Undocumented Workers 3
EEOC position:
Workers’ undocumented status does not justify workplace discrimination under statutes it administers.
Employers' liability for monetary remedies promotes the goal of deterring unlawful discrimination.
Case: Hoffman Plastic Compounds Inc. v. NLRB.
No back-pay, reinstatement remedies to undocumented workers.
Fair Labor Standards Act (Dept. of Labor):
Protects undocumented workers from abuses not involving future pay.
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Alternate Basis for National Origin or Citizenship Discrimination: Section 1981
Law applies to identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.
Section 1981 – Relates to discrimination because of ethnic characteristics or race.
St. Francis College v. Al-Khazraji recognized notional origin coverage.
Later cases: Narrow interpretation, not extended to gender claims or Amish employees.
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Management Tips
While a specific national origin may be a BFOQ, make sure that only individuals of that origin can do the specific job since courts have a high standard for BFOQ’s in this area.
An employee may have a claim for national origin discrimination if the worker is simply perceived to be of a certain origin, even if the individual is not, in fact, of that origin.
While English fluency may be required, you are not allowed to discriminate because of an accent (unless the accent makes it impossible to understand the individual). However, be cautious in evaluating the requirement of the job since there may be positions that do not actually require speaking English.
An employer may not point to customer, client, or coworker preference, comfort, or discomfort as the source of BFOQ.
If you are a federal contractor, remember that you have additional responsibilities to engage in outreach and positive recruitment activities under the Guidelines on Discrimination Because of Religion or National Origin.
While you are not prohibited from discriminating on the basis of citizenship under Title VII, you may be prohibited from discriminating on this basis under IRCA. Before instituting a policy, consider the implications of both statutes.
Recognize the concerns of Middle Eastern employees in the post–September 11 era: Include the topic of ethnic diversity in any workplace diversity training. Intervene promptly in incidents of harassment. Remain sensitive and flexible. Refrain from mandatory transfers and other short-term solutions to harassment, intimidation, and discrimination.
Be prepared for an increasingly diverse workforce. As conflict and climate crises force people in Central and South America to migrate north, more Latinx and other migrants will join the American workforce. Managers will need to respond to the changing needs of their diversifying workforce.
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Chapter Summary 1
Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for employers to limit, segregate, or classify employees in any way that would deprive them of employment opportunities based on their national origin.
An employee or applicant must show the following to be successful in a claim of discrimination based on national origin:
The individual was a member of a protected class.
The individual was qualified for the position at issue.
The employer made an employment decision against the individual.
The position was filled by someone not in a protected class.
“National origin” refers to an individual’s or an individual’s ancestor’s place of origin or physical, cultural, or linguistic characteristics of an origin group.
An employer has a defense against a national origin discrimination claim if it can show that the national origin is a bona fide occupational qualification. However, in general, this is very difficult to do. An exception to the difficulty is the requirement of English fluency, if speaking English is a substantial portion of the individual’s job.
No accommodation of a worker’s national origin is required, as it would be in situations involving disability or religion.
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Chapter Summary 2
English-only rules applied at all times are presumptively discriminatory, according to the EEOC. If the employer is considering an English-only rule, it is recommended that the employer should,
Consider whether the rule is necessary.
Determine if the rule is a business necessity.
Consider if everybody is fluent in English.
Communicate the rule to employees.
Enforce the rule fairly.
An alternative basis for national origin or citizenship discrimination is 42 U.S.C. § 1981.
Guidelines on Discrimination Because of Religion or National Origin are federal guidelines that apply to federal contractors or agencies and impose on those employers an affirmative duty to prevent discrimination.
The Immigration Reform and Control Act, unlike Title VII, prohibits, in certain circumstances, discrimination on the basis of citizenship. The act does allow for discrimination in favor of U.S. citizens where applicants are equally qualified.
Two statutorily allowed BFOQ’s under IRCA are:
English-language skill requirements that are reasonably necessary.
Citizenship requirements specified by law, regulation, executive order, government contracts, or requirements established by the U.S. attorney general.
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End of Main Content
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Employment Law for Business

Chapter 4

Legal Construction of the Employment Environment

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Learning Objectives 1

Explain why employers should be concerned about ensuring protections for equal opportunity during recruitment, in particular.

Describe how the recruitment environment is regulated, by both statutes and common law.

Describe the employer’s opportunities during the information-gathering process to learn as much as possible about hiring the most effective workers.

Explain how the employer might be liable under the theory of negligent hiring.

Learning Objectives 2
Identify the circumstances under which an employer may be responsible for an employee’s compelled self-publication, thus liable for defamation.
Explain the difference between testing for eligibility and testing for ineligibility and provide examples of each.
Identify the key benefits of performance appraisal structures, as well as their areas of potential pitfalls.
3

Evolution of the Employment Relationship
Sourcing and managing the employee assets of a firm requires knowledge and care – to maximize their contributions and avoid mistakes that can be expensive or worse.
law generally gives leeway in making employment decisions, as ‘discrimination’ among possibilities is how the best candidates are chosen.
only a few limitations on that discretion are imposed for example, by outlawing choices made on particular ‘status factors’ that compromise bedrock values like equal employment opportunities.
Other exceptions, for example, to ‘at-will’ employment capture actions in which other policies override employer interests or are otherwise unfair to workers.
Chapter traces evolution of the employment relationship – from sourcing through hiring, evaluation and eventual termination – to identify duties and potential pitfalls where careless management raises the risk of negative consequences.
4

Recruitment 1
First step in the evolution of the employment relationship.
Practices are particularly susceptible to discrimination claims.
Federal statutory regulation of recruitment.
Title VII of the Civil Rights Act of 19 64.
Age Discrimination in Employment Act of 19 67.
Immigration Reform and Control Act of 19 86.
Vocational Rehabilitation Act of 19 73 and the Americans with Disabilities Act of 19 90.
Note: many states have similar laws, that may also extend applicant protections.
Common law prohibitions: Misrepresentations and Fraud.
5

Application to Recruitment Practices
Advertisements – placement and exclusionary wording.
Scenario 1.
Word-of-mouth recruiting – common practice but take care to manage applicant pool (for example, 7th Circuit cases demonstrate risk).
Promoting from within – design process for broad access.
Venue recruiting – applicant pool issues (for example, vol. fire fighters case).
‘Walk-in’ applicants – processes to manage pool of unsolicited resumes.
Neutral solicitation – exclusionary wording (‘busboy’, ‘maid’).
Note: AI-assisted screening useful but does not insulate employer from discrimination risk (inherited or ‘learned’ biases ).
6

Information Gathering and Selection 1
Application phase: form is source of information for screening-out applicants based on job requirements. Bias risk abounds in unmanaged systems of review.
Few Prohibited Qs: re: disabilities, specific health risks, workers comp history (A D A).
Limited pandemic exception, per E E O C guidance (2020).
Monitor all questions for relevance, current need-to-know, discriminatory potential (for example, avoid age, sex, religion, ethnicity). See Exhibit 4.4,
wide state law variations.
Take care in wording of questions (for example, ‘maiden’ versus ‘any other’ name).
Recognize/correct for unconscious bias – anonymize for review, where practical.
The interview.
Training critical, standardization of inquiries and evaluation desirable.
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Information Gathering and Selection 2
Interviews phase, where risks are similar to initial application process. Training critical, standardization of inquiries and evaluation desirable.
Untrained, seemingly innocuous comments can be risky.
Process effects: monitor for systemic bias.
Four areas of particular concern.
Procedures that may discourage protected group candidates.
Interviewer team characteristics send message re bias.
Training of interviewers for sensitivity to bias potential in questioning.
Evaluation of outcomes: standardization of process and objectivity of selection criteria.
8

Information Gathering and Selection 3
Background or reference checks. (see Exhibit 4.6 Checklist)
Misrepresentation of academic credentials and work experience on résumés is rampant.
Remote interviews: potential real-time coaching, impersonation.
Background checks: Get needed permissions per federal and state laws, verify candidate information from Application and interview.
References: Ask those references to provide name of someone else who has worked alongside the candidate as a peer.
Potential referrer liability → trend away from useful information source. Limited immunity for good-faith references in some states.
Recognize Negligent Hiring risk (see next slide).
Note potential impacts and coverages of local, state ‘Ban-the-Box’ laws.
9

Grounds for Negligent Hiring Claim
Exhibit 4.5: Grounds for Negligent Hiring Claim.

Negligent
hiring
To state a claim for negligent hiring, the plaintiff must show:
The existence of an employer–employee relationship.
The employee’s incompetence or inappropriateness for the position assumed.
The employer’s actual or constructive knowledge of such incompetence or inappropriateness, or the employer’s ability.
That the employee’s act or omission caused the plaintiff’s injuries.
That the employer’s negligence in hiring or retaining the employee was the proximate cause of the plaintiff’s injuries
(that is, on investigation, the employer could have discovered the relevant information and prevented the incident from occurring).

Employer Liability and Protection 1
See Exhibit 4.8 Employer Strategies.
Reference checks – Employers may be held liable for negligent misrepresentation based on misleading statements made in employment references.
No duty to provide; consider (and train to) policy Not to provide them.
Alternative to seek release of claims from former employee – but complete coverage and administrative burden issues.
Compelled self-publication: Occurs in some states when an ex-employee is forced to repeat the reason for her or his termination.
Gives the ex-employee the basis for a claim for defamation.
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Page 155-159

Employer Liability and Protection 2
Exhibit 4.9: Tips for Employer Protection.
So how does the employer protect itself?
Precaution.

During the interview process
Obtain releases from all applicants allowing the employer to check on previous employment.
Request that all applicants obtain copies of their personnel files from previous employers.

Before a position is offered to the candidate

Investigate the employment record, including all gaps, missing data, and positions held.
Review educational records carefully. Contact the institutions listed to verify their existence, the years attended, the course of study, and, most important, actual graduation with degree.
Check references, especially when several are reluctant to speak. This may be viewed as a warning beacon that they do not have much good to say or have no desire to support the candidate. (On the other hand, ensure that this unwillingness is not the result of a bad relationship with the person. Allow the candidate the opportunity to explain.)

After the candidate is hired

Maintain clear, consistent policies relating to employment decisions.
Follow up on the implementation and enforcement of these policies.

Page 155-159
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Documentation of Failure-to-Hire
Internal documentation not legally required but is recommended.
Demonstrates hiring process system.
Record may refresh memories, provide evidence if decision-maker unavailable.
Provides statistical data for self-monitoring or defense.
External disclosure to former applicant, employee or third parties not required and of dubious value.
Risks defamation (third parties) or compelled self-disclosure (applicant, former employee) claims.
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Page 155-159
13

Management Tips
When sourcing, cast wide net and monitor for bias.
Beware interviewer statements regarding position that may mislead interviewees.
Monitor demographics of candidate pools, especially in relatively passive sourcing situations (word-of-mouth, promotion from within). Analyze postings and application forms for accuracy, wording neutrality and need-to-know (at this process stage).
Train interviewers and consider standardizing Qs and evaluations.
Background checks important to gain and act-on properly acquired information.
Consider References Provision policy: its risks, burdens, rewards and training requirements.
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Page 155-159
14

Testing in the Employment Environment 1
Pre-employment testing.
Eligibility Tests to find the best individual for a position (for example, I Q, stamina, necessary skills, aptitudes).
Ineligibility Tests to ensure that the individual is free from problems that would prevent her or him from performing the position’s functions. (substance abuse, polygraph, H I V).
Note: Individual privacy rights.
Courts do a balancing test to determine the legality of ineligibility testing to protect individual employee privacy rights.

Testing in the Employment Environment 2
Exhibit 4.11: Balancing the Interests in the Testing Debate.

Employer’s interest in securing a problem-free and substance-free workplace.
Balancing interests in the testing debate
Employee’s privacy rights and protections against self-incrimination.

Legality of Eligibility Testing 1
Eligibility testing: Tests conducted to ensure the capability and qualification of a potential employee.
To be legally validated, an employer must show that the eligibility test is:
Job-related.
Consistent with business necessity (Disparate Impact defense).
Job analysis data: Information about nature of work and the knowledge, skills, and abilities required to perform the work.
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Legality of Eligibility Testing 2
Validation: Evidence that shows that a test evaluates what it says it evaluates.
Strategies to validate tests, per E E O C Uniform Guidelines on Employee Selection.
Criterion-related validation – for example, simulated exercise.
Content validation – for example, job analysis to I D critical tasks.
Construct validity – tests to measure psychological characteristics, must be job-related and well-defined.
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Legality of Eligibility Testing 3
Integrity and Personality Tests.
Psychological tests are used by high percentage of large companies. Attention-to-detail has a strong correlation to on-the-job behavior.
Integrity, personality testing are trending. Quality varies widely, as do usefulness and defensibility of use (esp. ADA concerns).
Physical Ability Tests, usually simulations keyed to job description. Job-relatedness is key, especially rel. to Disparate Impact exposure.
Medical Tests, general and specific to job: timing key.
Exhibit 4.12: Timing of Testing Processes.

Conditional offer of employment

Background check, drug test, and all other nonmedical testing

Confidential medical testing is then permitted

Employment
19

Legality of Ineligibility Testing 1
Portions of state constitutions, state statutes, and local laws establish private-sector requirements for workplace testing.
Drug and Alcohol Tests.
Economic and human costs of substance abuse in the workplace enormous and affect productivity, injuries, turnover, etc.
70% of big companies use drug tests on more than 40% of jobs.
Costs vary from $30 to 200/test, privacy concerns, applicant reluctance, changing societal attitudes.
General cost/benefit analysis statistics unclear – consider risk in context of the work. See Exhibit 4-14.
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Legality of Ineligibility Testing 2
Federal and state laws vary widely as to underlying legality of use, and drug-testing requirements.
Successful employer plans incorporate:
(1) a written drug policy that has been drafted after input from employees,
(2) a supervisory training program,
(3) an employee education and awareness program.
(4) access to an employee assistance program, and
(5) a drug-testing program, where appropriate.
Cases re suspicionless testing: National Treasury Employees Union v. Von Raab. (yes, re safety-sensitive positions), but Chandler v. Miller (no, re general fitness for public office).
21

Legality of Ineligibility Testing 3
Drug Testing and ‘Legal’ Marijuana Use.
Laws in transition as societal norms on marijuana evolve.
Per 2022, 37 states allow medicinal uses, 21 states include recreational uses.
States vary as to continuing viability of testing and consequences. Some differentiate prescribed medical from recreational use.
Americans with Disabilities Act implications.
Re medicinal uses, drug may be considered treatment of qualifying disability; its continuing use may qualify as a reasonable accommodation.
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Polygraphs 1
Polygraph: ‘Lie-detecting’ device that measures biological reactions in individuals when questioned.
Rate and depth of respiration, Cardiovascular activity, Perspiration.
Accuracy concerns re both false negatives (‘duper’s delight’) and positives (‘Othello effect’ – actually regarding his faithful accused wife Desdemona).
Accuracy rates range 50 to 90 percent. (flipping a coin = 50%).
Per Employee Polygraph Protection Act, employers cannot:
Require or cause any employee to take any lie detector test.
Use, accept, refer to, or inquire about the results of any lie detector test of any job applicant or current employee.
Discharge, discipline, etc. any prospective or current employee who refuses to take or submit to a lie detector test or who fails such a test.
With a few employer exemptions and exceptions (see Exhibit 4.15).
27 states concur and may be more strict in protecting employees.
23

Genetic Tests 1
Title II of the Genetic Information Non-Discrimination Act of 2008 (G I N A).
Prohibits the use of genetic information in making employment decisions.
Restricts employers from requesting, requiring, or purchasing genetic information.
Strictly limits the disclosure of genetic information (but see Exhibit 4.16 re narrow exceptions).
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Genetic Tests 2
G I N A:
Does not apply to employers who have fewer than 15 employers.
Does not cover people in the military.
However, 38 states concur with ban, by statute.
Genetic irregularities may be considered protected disabilities under the Americans with Disabilities and Vocational Rehabilitation Act.
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Unique Considerations of HIV/AIDS Testing
Individualized assessment required.
ADA limits pre-employment inquiry, testing – employer may ask or require related testing only if:
Positive H I V status poses Direct Threat (see chapter 13).
Inquiry, test made post-offer.
Same inquiry, test made of/on all applicants in same job category.
Note: E E O C regs use phlebotomist example as not meeting Direct Threat standard for exclusion from consideration. Most occupations do not qualify under that standard.
Note 2: employer duty to hold any + H I V/AIDS data confidential.
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Management Considerations: Testing
Three possible corporate approaches for testing employees for ineligibility.
Employer may establish mandatory testing – for drug or alcohol use or some other form of ineligibility.
Employer may implement ‘probable cause’ testing, where an employer tests employees only if there is suspicion of ineligibility.
Some employers may implement random testing.
Strategic decision considering cost/benefit, corporate culture and local laws that may restrict use. Regardless of choice, policy must be clear and clearly communicated, evenly applied and quality assured.
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Performance Appraisals, Evaluation, and Discipline Systems 1
Performance appraisal (P A s): Periodic assessment of an employee’s performance – essence of management.
The purpose of performance appraisals.
Identify performance characteristics employer hopes employee will accentuate.
Identify opportunities for improvement via training, attention. Discourage performance characteristics not in keeping with the organization’s objectives.
Potential for discriminatory effect depends on the manner in which the appraisal is conducted.
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Performance Appraisals, Evaluation, and Discipline Systems 2
Realities about performance evaluations.
Employers might be liable for giving a negative reference even when based on valid P A. (Note general cautions re references)
Employers need not lower standards or qualifications to accommodate employee’s or applicant’s needs.
Performance appraisal systems should maximize reliance on objective measures.
Performance incentive systems recognize outstanding performance and leadership.
Legal challenges are found mostly in the areas of implementation, monitoring, and accountability.
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Legal Implications of PA Systems
Disparate Impact.
Four-fifths rule: Minority group must perform at least 80 percent (four-fifths) as well as the majority group under a screening device or the test is shown to have a disparate impact on the minority group.
Subject to Business Necessity defense (see Chapter 2).
Objective criteria important to counter discrimination claims.
Disparate Treatment (per McDonnell Douglas framework).
Requires application of uniform evaluation criteria – see Hopkins case.
Scenario 3.
Defamation: risk heightened if PA given broad circulation, esp. to 3rd Parties.
PAs Considerations under ADA: uniform standards, but recognizing ‘essential functions’ and ‘reasonable accommodations’ (see Chap 13).
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Management Tips: Performance Appraisals
Implement and Maintain proper documentation of performance appraisals.
Train supervisors on nonbiased reporting and evaluations, uniform, objective measures preferred.
Take precautions against inappropriate disclosures.
Evaluate performance frequently, systematically, uniformly and as stated in the employee manual or other materials.
Sirikorn thamniyom/Shutterstock
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Discipline 1
Employment at-will, but “Just cause” disciplinary approach bolsters any needed defenses v. discrimination claims.
How is “just cause” determined? See Exhibit 4.19 Tests.
Due process.
Adequate evidence.
Appropriateness of penalty/progressive discipline.
Documentation(!) assures employees of adequate feedback and helps avoid lawsuits.
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Discipline 2
Exhibit 4.19: The Seven Tests of Just Cause.
Did the employer give to the employee forewarning of the possible or probable disciplinary consequences of the employee’s conduct?
Was the employer’s rule or managerial order reasonably related to the orderly, efficient, and safe operation of the business?
Did the employer, before issuing discipline, make an effort to discover whether the employee violated or disobeyed a rule or order of management?
Was the employer’s investigation conducted fairly and objectively?
At the investigation, did the employer obtain substantial evidence or proof that the employee was guilty as charged?
Has the employer applied its rules, orders, and penalties evenhandedly and without discrimination?
Was the degree of discipline administered by the employer reasonable given (a) the seriousness of the employee’s proven offense and (b) the record of the employee’s service?
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Chapter Summary 1
Even in at-will circumstances, employers must take care to provide equal opportunities and avoid exceptions to at-will treatment.
Ethic of non-discrimination must pervade entire hiring process, from sourcing through to engagement.
Hiring to a well-drafted job description is effective protection against discrimination claims. Actual job should conform to description.
Sourcing should seek diverse candidate pool. Application and interview processes must be developed with care.
Avoid negligent hiring concerns via analysis of critical criteria, background checks and references, if available.
Carefully consider whether to provide references and train personnel to policy.
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Chapter Summary 2
Eligibility and Ineligibility Testing should be uniformly performed in the context of the position, based on validated tests.
Performance Appraisals are a better as a management process than as a separate event. Expectations should be clear, well-communicated and uniformly applied to employees’ performance. Objective measures preferred to reduce bias risk. Publication should be limited to those who need-to-know.
Just-cause discipline processes with progressive discipline should be implemented to serve fairness and performance improvement goals.
35

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