Selection of Employees

1. Selection of Employees Overview:An Employer’s Right to Select “At Will”

2. Selection of Employees Some Possible Employer Goals • Select those who will perform this job well. • Select those who will fit with this workplace culture. • Select those who are not dangerous to us or the public. • Reduce the pool of applicants requiring careful consideration. Could an employer select by lottery?

3. Employer Duties to Third Parties Reason Enough to Be Careful In Employee Selection?

4. Respondeat SuperiorReason Enough to Be Careful? • Employee actions imputed to employer. • Employer negligence irrelevant. • Limited to accidents in scope of employment. • What about intentionalemployee torts? Must the Railroad pay for the conductor’s mistake?

5. Negligent HiringHow Might It Affect Employer Liability? David Berkowitz: Experienced security guard; commercial driver’s license; veteran; high school graduate; churchgoer; serial killer.

6. Advantages of Negligent HiringCompared with Respondeat Superior • Direct, not imputed liability(based on employer’s negligence). • Effect on the jury? • Might be proximate cause of torts outside scope of employment, even some intentional employee torts • Imputed liability not always basis for punitive damages;employer’s own recklessness is. A more lucrative claim for the plaintiff?

7. Employer Negligence in HiringWise v. Complete Staffing • Workers’ comp.: How did Wise avoid exclusive remedy rule? • Respondeatsuperior a basis for Staffing’s liability? • Direct Negligence: How might Staffing possibly be negligent? • Duty: Is the alleged duty of Complete Staffing a duty it owed to Wise? Are Complete Staffing’s fingerprints on this tort?

8. A Duty of Care in Hiring?Third Parties and Negligent Hiring • General rule: No duty to anyone in hiring. • Exception: Hire competent person if badly performed work creates special public hazard. • Exception: Duty to consider character of person responsible for especially vulnerable client. • Exception:Statute or contract. Risk of incompetence?Risk of dangerous character?

9. Magnitude of risk Foreseeability Likelihood of harm Adverse consequence of imposing duty Social utility of no duty. Why Not aDuty in Every Case? The Usual Test in Tort Law In Favor of Duty In Favor of No Duty Other Problems: (1) How much investigation would be “reasonable,” and (2) would employer be required always to decline to hire in case of negative information?

10. Problem An applicant for a nursing position has interviewed at the hospital that is your client. The applicant revealed that 4 years ago, before she completed nursing school, she was arrested for shoplifting. She said she was wrongfully accused of attempting to steal an expensive pen from a store. She really just forgot she had the pen in her hand when she left. She pleaded nolo contendere in order to qualify for a first offender suspended sentence. Aside from the fact of her arrest record, the hospital likes this candidate (and it really needs nurses). They want to know the legal repercussions of hiring this individual.

11. Ex-Convicts & Public PolicyPublic Security v. Rehabilitation? • Does declining cost of background check justify imposition of duty? • Risks of accessible database? • Is it negligence per se to hire ex-convict? • Should we regulate discrimination against ex-cons? Now that he’s served his time, will he find a job?

12. Statutory Prohibitions Against Discrimination Should Some Job Qualifications Be Illegal?

13. Race (Title VII, § 1981) Color (Title VII, § 1981) National origin (Title VII, IRCA, § 1981) Sex (gender, pregnancy, harassment) (Title VII) Religion (Title VII) Disability (ADA) Citizenship (IRCA) In some states: sexual orientation New state laws against genetic discrimination. Some states: marriage, appearance, politics. The Prohibition:No Discrimination on Basis of … EEO

14. Anti-Discrimination LawThe Enforcement Strategy • Independent agency (EEOC) to investigate “cause” to believe an employer may have discriminated against claimant. • Agency (EEOC) mediation. • Federal court jurisdiction for subsequent lawsuit. • “Make whole” remedies.

15. Proving Discriminatory IntentAnd the Smoking Gun Problem • Problem: proving state of mind. • The normalcy of adverse action. • Categorical v. qualified bias. • Subconscious bias. • Collective decision-making. • Limited access to information. Rejection and discharge are not smoking guns

16. Indirect Proof of Discrimination Circumstantial Evidence of Intent? • Statistics • Expressions of bias • Comparative evidence • Other instances of discrimination • Will rejected applicant have access to facts? Mind reading needn’t be hocus pocus

17. McDonnell Douglas v. Green Which voice did the employer hear? How can we know?

18. Smoking the Employer Out:Facts Demanding Explanation • I am black (or member of other protected class). • The employer had a job opening. • I had the obvious or posted job qualifications. • The employer rejected or failed to hire me. • The employer continued to seek other applicants or filled the position with a person not of the same protected class.

19. Result: Permissible Inference Of Illegal Discrimination • The facts support apermissible inferenceof discrimination. • E must articulate alegitimate non-discriminatory reason. • Must present LNR by admissible evidence. Risk of cross-examination. Permissible inference puts employer’s decision under a microscope.

20. The Essence of the Formula:A Model for Other Cases? • Type of discrimination. • Adverse action. • Negation of most obvious nondiscriminatory reasons (e.g., lack of qualifications; no opening). • But is this really enough? A formula for distinguishing Dr. Jekyll from Mr. Hyde?

21. Problem Green Grocery terminated Ms. Belinda Worker’s employment as Assistant Store Manager. The store then hired Mr. Fred Worker. Using McDonnell Douglas v. Green analysis, what is the minimal prima facie case for Worker, in the absence of other evidence of illegal employer intent?

22. Problem Green Grocery (GG) terminated Fred Worker’s employment as Assistant Store Manager. Fred is a white male, but he believes GG discriminated against him because of his race, or perhaps because he is a Swedish-American Lutheran. Using McDonnell Douglas v. Green analysis, what is the minimal prima facie case for Worker, in the absence of other evidence of illegal employer intent?

23. The Unspoken “Fact”And Formula’s Limited Purpose • Implicit fact: history of racism. • History makes unexplainedrejection suspect. • Employer credibility a proxy for issue of discrimination. • Plaintiff gains access to facts, chance to cross-examinationand challenge. An unexpressed extra ingredient of the formula?

24. Problem At trial, evidence showed that when higher managers were making the decision to discharge Worker, a District Manager (who made the final decision) uttered a racist expletive in reference to Worker. In the midst of deliberations, the jury sent a note to the judge: “We think the District Manager is a racist, but we also believe other managers were concerned about Worker’s performance. Some of us think Worker should win because the District Manager considered race. Others think GG should win based on evidence about Worker’s performance. How do we break the deadlock?”

25. Problem At trial, the preponderance of the evidence showed that GG discharged Worker because of race. However, in the course of pretrial investigation and discovery, GG learned that Worker had been violating the FLSA by altering time cards to prevent employees from receiving overtime pay they had earned by working late. GG attempted to present evidence of this fact at trial. Worker’s attorney objected on the grounds that the evidence was irrelevant. How should the judge rule?

26. Griffin v. Steeltek, Inc. Does he break the law just by asking?

27. Griffin v. Steeltek, Inc.Challenged Application Questions • “Have you received workers’ compensation or disability income payments? If yes, describe.” • “Have you physical defects which preclude you from performing certain jobs? If yes, describe.” The application form: A smoking gun?

28. Labeling and Inquiring As to Protected Characteristics • Could questions be evidence of discrimination? • Legitimate reasons for the question? • Per se violation v. evidence of violation under Title VII (race, sex, religion). Can he ask how “old” you are?

29. Discriminatory InquiriesSpecial Problems Under the ADA • How is the ADA different from Title VII or the ADEA? • Why does it take this approach? • How is the rule enforced? • Was it enforced in Griffin?

30. Problem Click & Flash LLP is sending two of its attorneys to a law school to interview students for associate positions. They hope to interview about thirty students and to select five from this group for follow-up interviews. One of the interviewers proposes to take a camera with him to photograph each of the interviewees, and to use the photos as an aid for recalling each interviewee. He has asked you, the firm’s employment law expert, whether such use of a camera is permissible. How would you advise him?