PeopleAdmin

1. PeopleAdmin • Over 550 Clients • State, Local and Education • 99.6% retention rate since inception • Proven Solutions Tested by Volume • 18 Million distinct applications • 100,000 postings • 5 million documents uploaded • 99.9% uptime • Award-winning approach • Recipient of the 2008 Stevie Award for Customer Service Department of the Year • PeopleAdmin 7 Cobb County

2. The Cost of Non-compliance How our technology can drive compliance… • Enforced workflows • Defensible employment decisions • Detailed audit trails • Certified eligible lists • Merit-based hiring 95,000 cases/year X $235,000 cost/case $22 billion Source: Equal Employment Opportunity Commission

3. PeopleAdmin Talent Management Solutions to Manage the Entire Employment Lifecycle

4. Hiring Practices & Equal Employment Opportunity By Jonathan E. Kaufmann Kaufmann & Brick Fairfax, VA For OMNIGOV

5. Equal Employment Opportunity Commission • Enforces Civil Rights Laws • Oversees Federal Complaint Program • Investigates Non-Federal Sector discrimination complaints • EEOCAJ’s Conduct Hearings • Renders Decisions • Issues Regulations and Guidance

6. Prohibited Employment Policies/Practices • Under the laws enforced by EEOC, it is illegal to discriminate against someone (applicant or employee) because of that person's: • race • color • religion • sex (including pregnancy) • national origin

7. Prohibited Employment Policies/Practices cont. • age (40 or older) • disability • genetic information. • It is also illegal to retaliate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

8. Federal Equal Employment Opportunity (EEO) LawsI. What Are the Federal Laws Prohibiting Job Discrimination? • Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin; • the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination; • the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older; • Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments; • Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government; • Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee; and • the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.

9. Non-statutory bases Federal Executive Orders and Agency Policy prohibits discrimination for the following bases: • Parental Status • Marital Status • Sexual Orientation • Political Affiliation

10. Protected Classes • Race, Color, Religion, Sex or National Origin • Workers over 40 are protected under the Age Discrimination in Employment Act (“ADEA” • The Americans with Disabilities Act (“ADA”) prohibits discrimination against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, etc.

11. Disparate Treatment • Disparate treatment discrimination occurs when race or another protected trait is a motivating factor in how an individual is treated.

12. Disparate Treatment: Cases

13. Suspect Hiring Practices

14. Animus • No overt expressions of discrimination

15. Stereotyping and Bias • Be careful if you use words that imply preferences

16. Yielding to Customer Preferences • What clients want cannot be based on discriminatory considerations

17. Job Advertisements • Illegal for an employer to publish a job advertisement that shows a preference for or discourages someone from applying for job because of his or her race, age, disability, sex, etc.

18. Applications & Hiring-General Rules • It is illegal for an employer to discriminate against a job applicant because of his or her race, age, disability, sex, etc. Obvious illegal practices: • May not refuse to give employment applications to people of a certain race. • An employer may not base hiring decisions on stereotypes and assumptions about a person’s.

19. Tests • Test must be necessary and related to job • Employer may not use a test that excludes applicants age 40 or older if the test is not based on a reasonable factor other than age

20. Recruitment Issues • Job advertisements-no illegal preferences • Employer requests-cannot honor illegal requests • Word-of-mouth employee referrals-can be suspect unless diverse sources used • Homogeneous Recruitment Sources-also can lead to problems

21. Immigration Reform and Control Act (IRCA) of 1986 • Employers need to assure that employees hired are legally authorized to work in the US • Employers cannot single out individuals of a particular national origin • Citizen requirements also suspect

22. Religious Accommodations • Employer process must accommodate religious beliefs of an applicant unless undue hardship • Non-religious employers-may not recruit individuals of a particular religion • However, non-religious employers could hire an individual based on their religion if it is a BFOQ

23. Disability • The Americans with Disabilities Act of 1990 (ADA) • Rehabilitation Act of 1973 – Applies to Federal Agencies

24. Discrimination on the basis of Disability • The Americans with Disabilities Act of 1990 (ADA) protects "qualified individuals with disabilities" from discrimination by private employers in general as well as by state and local entities and some federal government employers. The ADA requires reasonable accommodation for such qualified individuals, unless the accommodation would pose an undue hardship. A qualified individual with a disability is an individual "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” It follows that, to the extent an individual cannot perform the essential functions of the job even with reasonable accommodation, he or she cannot claim to be a qualified individual under the ADA.

25. What is a disability? • The definition of "disability" found in the ADA is three-pronged:The term "disability" means, with respect to an individual-- (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment

26. "Physical or Mental Impairment" • (1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or • (2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. Among the conditions that have been ruled to be physiological disorders within the meaning of the ADA's above-quoted statutory definition are bladder conditions, blood disorders, Hepatitis C, heart conditions or coronary artery disease, continuing effects of back injuries, knee injuries with permanent effects, thyroid disease, migraine headaches, AIDS/HIV at all stages and loss of one lung. Many other conditions also qualify.

27. What Is Not an Impairment • The EEOC's Guide explains that "impairment" does not include mere "physical, psychological, environmental, cultural and economic characteristics" that are within the normal range and not the result of a physiological disorder. • Examples: Obesity, Environmental, Cultural, or Economic Disadvantage, Advanced Age, Pregnancy, and Personality Traits

28. Applicants Who Identify Disabilities • If a job applicant with a disability needs an accommodation (such as a sign language interpreter) to apply for a job, the employer is required to provide the accommodation, so long as the accommodation does not cause the employer significant difficulty or expense.

29. Hiring Disabled (Schedule A) Employees-Federal Sector- • Proof of Disability: An individual wishing to be hired under this Schedule A (5 C.F.R. 213.3102(u)) authority must provide proof he or she is indeed an individual with mental retardation, severe physical disability, or psychiatric disability. This proof must be provided to the hiring agency before an individual can be hired. This proof may be in the form of documentation obtained from licensed medical professionals, state or private vocational rehabilitation specialists, or any Government agency that issues or provides disability benefits.

30. Hiring Disabled Employees – Part II 2. Certification of Job Readiness: An individual hired under this authority must be ready to perform the job for which they are being considered. This certification is a statement that the individual is likely to succeed in the performance of the duties of the position for which he or she is applying. For instance, the certification of job readiness for an individual applying for a position as an Administrative Assistant or an Accountant may state that the “individual is likely to succeed performing work in an office environment.”

31. Reasonable Accommodation • A reasonable accommodation is any change in the workplace (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. • Reasonable accommodation might include, for example, providing a ramp for a wheelchair user or providing a reader or interpreter for a blind or deaf employee or applicant.

32. Disability & Medical Exams During Employment Application & Interview Stage • The law places strict limits on employees when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability. • For example, an employer may not ask a job applicant to answer medical questions or take a medical exam before extending a job offer. An employer also may not ask job applicants if they have a disability (or about the nature of an obvious disability). An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.

33. Disability & Medical Exams After a Job Offer for Employment • After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam.

34. Disability & Medical Exams for Persons who have started working as Employees • Once a person is hired and has started work, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee’s request for an accommodation or if the employer believes that an employee is not able to perform a job successfully or safely because of a medical condition. • The law also requires that employers keep all medical records and information confidential and in separate medical files.

35. Other Pre-Employment Inquiries • Traps for the Unwary

36. Height & Weight • Height and weight requirements tend to disproportionately limit the employment opportunities of some protected groups. • Employer has to demonstrate it is related to the job. • Some states and localities prohibit discrimination based on height and weight unless based on actual job requirements. • Therefore, unless job-related, inquiries about height and weight should be avoided.

37. Credit Rating or Economic Status • Inquiry into an applicant’s current or past assets, liabilities, etc. tend to impact more adversely on minorities and females. • Exceptions-showing that such information is essential to the particular job in question.

38. Religious Affiliation or Beliefs • Questions about an applicant’s religious affiliation or beliefs (unless BFOQ), are generally viewed as non job-related and problematic under federal law. • Religious corporations, associations, educational institutions, or societies are exempt from the federal laws that EEOC enforces when it comes to the employment of individuals based on their particular religion. Cannot discriminate on other grounds. • Other employers should avoid questions about an applicant’s religious affiliation.

39. Citizenship • Employers should not ask whether or not a job applicant is a United States Citizen before making an offer of employment. • IRCA makes it illegal for employers to discriminate with respect to hiring, firing, or recruitment or referral for a fee, based on an individual’s citizenship or immigration status. • Also prohibits employers from preferring to hire temporary visa holders or undocumented workers over qualified U.S. citizens or other protected individuals, such as refugees or individuals granted asylum. • IRCA requires employers to verify the identity and employment eligibility of all employees hired after November 6, 1986, by completing the Employment Eligibility Verification (I-9) Form, and reviewing documents showing the employee’s identity and employment authorization.

40. Citizenship II • The law prohibits employers from rejecting valid documents or insisting on additional documents beyond what is legally required for employment eligibility verification (or the Department of Homeland Security (DHS) Form I-9), based on an employee’s citizenship status or national origin. • As long as the document appears reasonably genuine on its face, and relates to the employee, it should be accepted. • Because of potential claims of illegal discrimination, employment eligibility verification should be conducted after an offer to hire has been made.

41. Citizenship III • Applicants may be informed of these requirements in the pre-employment setting by adding the following statement on the employment application: “In compliance with federal law, all persons hired will be required to verify identity and eligibility to work in the United States and to complete the required employment eligibility verification document form upon hire.”

42. Marital Status or Number of Children • Questions about marital status and number and ages of children are frequently used to discriminate against women and may violate Title VII if used to deny or limit employment opportunities. • Questions should not only be asked of women and not men (or vice-versa). • Even if both groups asked, such questions may be seen as evidence of intent to discriminate against, for example, women with children.

43. Marital Status II • Generally, employers should not use non job-related questions involving marital status, number and/or ages of children or dependents, or names of spouses or children of the applicant. Such inquiries may be asked after an employment offer has been made and accepted if needed for insurance or other legitimate business purposes.

44. Marital Status III The following pre-employment inquiries may be regarded as evidence of intent to Discriminate when asked in the pre- employment context: • Whether applicant is pregnant. • Marital status of applicant or whether applicant plans to marry. • Number and age of children or future child bearing plans. • Child care arrangements. • Employment status of spouse. • Name of spouse. • Pre-Employment inquiries and Gender.

45. Arrest & Conviction • No Federal law that clearly prohibits an employer from asking about arrest and conviction records. • Could limit the employment opportunities of some protected groups and thus cannot be used in this way. • An arrest alone does not necessarily mean that an applicant has committed a crime. • The employer should allow him or her the opportunity to explain the circumstances of the arrest(s) and should make a reasonable effort to determine whether the explanation is reliable.

46. Security/Background Checks for Certain Religious or Ethnic Groups • If the employer requires all other applicants to undergo background checks before being offered a position, the employer may require members of religious or ethnic groups to undergo the same pre-employment investigations. • May not subject only particular religious or ethnic groups, such as Muslims or Arabs, to heightened security checks. • Some employers, such as defense contractors, may require a security clearance for certain jobs pursuant to a federal statute or Executive Order.

47. Security/Background Checks for Certain Religious or Ethnic Groups II • Clearance determinations must generally be processed and made without regard to race, religion, or national origin. • However, security clearance determinations for positions subject to national security requirements under a federal statute or an Executive Order are not generally subject to review under the equal employment opportunity statutes.

48. Prohibited Employment Policies/Practices: Disparate Impact • The laws enforced by EEOC prohibit employers from using neutral employment policies and practices that have a disproportionately negative effect on applicants or employees of a particular race, color, religion, sex (including pregnancy), or national origin, or on an individual with a disability or class of individuals with disabilities, if the polices or practices at issue are not job-related and necessary to the operation of the business.

49. Disparate Impact continued • The laws enforced by EEOC also prohibit an employer from using neutral employment policies and practices that have a disproportionately negative impact on applicants or employees age 40 or older, if the policies or practices at issue are not based on a reasonable factor other than age.

50. Federal Sector EEO Program • All Federal Agencies have EEO complaint programs Three Stages: • Informal Stage – EEO Counseling and/or Mediation • Investigative Stage – Formal Investigation can be time-consuming • Decision Stage – Final Agency Decision or Hearing before an EEOCAJ Many State and Municipalities use similar procedures.