ANSWER THESE QUESTIONS

Chapter 6 - Applicant Screening and Employee Socialization

Security and Loss Prevention: An Introduction, 5th Edition

by Philip P. Purpura

Employment Law

Government regulation affects the balance and working relationship between employers and employees in

three major areas: (1) the prohibition of employment discrimination; (2) the promotion of a safe and healthy

workplace; and (3) fair negotiation between management and labor concerning terms of employment

(Mann and Roberts, 2001 : 858). Here we begin with major federal laws prohibiting employment

discrimination, followed by applicant screening methods. The laws on workplace safety and labor are

covered in other chapters.

It is important to note that beyond the federal law emphasized here, and executive orders of presidents,

are state and municipal laws that exceed federal legal requirements and state court decisions that interpret

state laws. For instance, several states consider sexual orientation a "protected class." Also, many

corporations have policies to protect employees on the basis of sexual orientation ( DeCenzo and Robbins,

2005 : 62).

Federal Legislation

◾ Equal Pay Act of 1963: This legislation requires that men and women be paid equally if they

work at the same location at similar jobs. Exceptions include a seniority or merit system and

earnings through quantity or quality of production. The act is enforced by the Equal

Employment Opportunity Commission (EEOC).

◾ Civil Rights Act of 1964, Title VII: This law prohibits employment discrimination based on

race, color, religion, gender, or national origin. Title VII prohibits discrimination with regard to

any employment condition, including recruiting, screening, hiring, training, compensating,

evaluating, promoting, disciplining, and firing. It also prohibits retaliation against an individual

who files a charge of discrimination. The law impacts both public and private sectors. Title VII

requires that organizations go beyond discontinuing discriminatory practices and gives

preferences to minority group members in employment decisions; this is referred to as

affirmative action. Congress established the EEOC to enforce Title VII.

◾ Age Discrimination in Employment Act of 1967: The ADEA prohibits employment

discrimination on the basis of age in areas such as hiring, firing, and compensating. It applies

to private employers with 20 or more employees and all government units. This law protects

employees between 40 and 65 years of age, but in 1978 the law was amended to afford

protection to age 70, and then in 1986 the law was amended again to eliminate the upper age

limit. Mandatory retirement is prohibited, absent a suitable defense. The act is enforced by

the EEOC.

◾ Equal Employment Opportunity Act of 1972: The purpose of this federal law (EEO) is to

strengthen Title VII by providing the EEOC with additional enforcement powers to file suits

and issue cease-and-desist orders. Further, EEO expands coverage to employees of state

and local governments, educational institutions, and private employers of more than 15

persons. EEO programs are implemented by employers to prevent discrimination in the

workplace and to offset past employment discrimination. ◾ Rehabilitation Act of 1973: This act requires government agencies and contractors with the

federal government to take affirmative action to hire those with physical or mental handicaps.

The act is enforced by the Office of Federal Contract Compliance Procedures.

◾ Pregnancy Discrimination Act of 1978: This law requires pregnancy to be treated as any

other type of disability. And, EEO protection is afforded to pregnant employees.

◾ Americans with Disabilities Act of 1990: The ADA prohibits discrimination against

individuals with disabilities and increases their access to services and jobs. The law requires

employers to make reasonable accommodations for employees with a disability if doing so

would not create an undue hardship for the employer. Reasonable accommodations include

making existing facilities accessible and modifying a workstation. This law has had a

significant impact on the security and safety designs of buildings. Access controls, doorways,

elevators, and emergency alarm systems are among the many physical features of a building

that must accommodate disabled people. The act is enforced by the EEOC.

◾ Civil Rights Act of 1991: This legislation provides additional remedies to deter employment

discrimination by codifying disparate impact concepts and allowing plaintiffs to demand a jury

trial and seek damages. Ivancevich (2001 : 74) writes: " Disparate impact or unintentional

discrimination occurs when a facially neutral employment practice has the effect of

disproportionately excluding a group based upon a protected category." (The U.S. Supreme

Court expanded the definition of illegal discrimination to include disparate impact as

illustrated in the Griggs case.) This act requires businesses to prove that the business

practice that led to the charge of discrimination was not discriminatory but job related for the

position and consistent with business necessity. The act is enforced by the EEOC.

◾ Disparate treatment is another type of discrimination whereby an applicant claims that he or

she was not hired because of a discriminatory reason. Examples are asking only one

applicant about age or asking only female applicants about child care.

◾ Family and Medical Leave Act of 1993: This legislation requires employers to provide 12

weeks of unpaid leave for family and medical emergencies without employees suffering job

loss. The act is enforced by the Department of Labor.

U.S. Supreme Court Decisions

When laws are passed, the courts play a role in helping to define what the legislation means . Such court

cases evolve, for example, when the EEOC develops and enforces guidelines based on their interpretation

of legislation. Confusion over how to interpret the legislation has led to many lawsuits and some conflicting

court decisions. What follows here are two famous U.S. Supreme Court cases from an historical context to

illustrate the development of the issues and laws.

Griggs v. Duke Power (1971): In 1968, several employees of the Duke Power Company in North Carolina

were given a pencil-and-paper aptitude test for manual labor. Willie Griggs and 12 other black workers

sued their employer with the charge of job discrimination under the Civil Rights Act of 1964. Their

contention was that the pencil-and-paper aptitude test had little to do with their ability to perform manual

labor. The U.S. Supreme Court decided that a test is inherently discriminatory if it is not job related and

differentiates on the basis of race, sex, or religion. Furthermore, employers are required to prove that their

screening methods are job related.

Bakke v. University of California (1978): Reverse discrimination was the main issue of this case. Allan

Bakke, a white man, sued the Davis Medical School under the "equal protection" clause of the 14th

Amendment because it set aside 16 of 100 openings for minorities, who were evaluated according to

different standards. The Court concluded that the racial quota system was unacceptable because it

disregarded Bakke's right to equal protection of the law, and that affirmative action programs are

permissible as long as applicants are considered on an individual basis and a rigid number of places has

not been set aside. Race can be a key factor in the selection process; however, multiple factors must be

considered. What do all these laws and cases mean for those involved in applicant screening? Basically, all screening

methods must be job related, valid, and nondiscriminatory. Included in this mandate are interviews,

background investigations, and tests. Simply put, the EEOC regards all screening tools as capable of

discriminating against applicants .

Equal Employment Opportunity Commission

The EEOC does not have the power to order employers to stop a discriminatory practice or to provide back

pay to a victim. However, the EEOC has the power to sue an employer in federal court. The EEOC

requires employers to report employment statistics annually. It investigates claims, collects facts from all

parties, seeks an out-of-court settlement, and promotes mediation.

According to the Equal Employment Opportunity Commission, Office of General Counsel (2005) , over

24,000 callers a month speak with EEOC customer service representatives. Another 15,000 customers a

month receive answers to questions through other technology. Customers can communicate in more than

150 different languages by telephone, fax, written correspondence, e-mail, and web inquiries. During FY

2005, the agency resolved 66% of private sector charges within 180 days or fewer, 51,060 charges out of

77,441 total resolutions. Fifty-two percent of appeals were resolved within 180 days or fewer (3,899 out of

7,490 appeals received). The FY 2005 litigation workload was 944 suits, with 561 active and 383 filed.

Seventy-three percent of cases involved Title VII, 12% involved the ADA, and 10% involved the ADEA.

Federal District Court litigation activity resulted in about $108 million in monetary relief for FY 2005. The

top five defendants versus EEOC were as follows: Abercrombie & Fitch Stores, Inc. ($50 million); Ford

Motor Co. ($10.2 million); Home Depot, USA, Inc. ($5.5 million); Dial Corp. ($3.3 million); and Hamilton

Sundstrand Corp. ($1.2 million).

Denial of Equal Employment Opportunities Because of Sex

Women's access to employment opportunities continues to be obstructed by sex bias in some

workplaces, particularly in jobs traditionally held by men. In a case brought against a nationwide

manufacturer of household products, the Commission alleged that Dial Corporation's use of a physical

"work tolerance" test for production operator positions at a food processing plant in Iowa intentionally

discriminated against female applicants and also had a disparate impact on women ( Equal

Employment Opportunity Commission, Office of General Counsel, 2005 ). In EEOC v. Dial Corp (S.D.

Iowa Sept. 29, 2005), EEOC presented at trial the testimony of an expert witness that 97% of men

pass the test while only 40% of women succeed, that the test is more difficult than the job, that the

scoring is subjective, and that the test does not accomplish its stated objective of reducing injuries.

EEOC also presented testimony from 10 of approximately 40 unsuccessful female applicants, focusing

on their experience in performing jobs that require heavy lifting. The company presented two expert

witnesses, who testified that the production operator job is in the 99th percentile of all jobs in the

economy with respect to the physical strength required, that the test is very like the job and therefore

is content valid, and that the test had in fact reduced injuries.

The jury returned a verdict for EEOC, finding that the company's continued use of the work tolerance

test since April 2001 (when the company became aware of the test's disparate impact on women)

constituted intentional sex discrimination against women. The court later ruled that the test had had a

disparate impact on women since its inception in January 2000. The judgment provides approximately

$3.38 million in back pay, benefits, prejudgment interest, and compensatory damages to 52 class

members. It also prohibits the company from implementing any preemployment screening device for

five years without first consulting EEOC, and provides job offers with rightful place wages to all class

members.

EEO, AA, and Quotas

Equal employment opportunity, affirmative action, and quotas are important terms relevant to staffing

organizations ( Heneman et al., 1997 : 62–64). Equal employment opportunity (EEO) refers to practices

that are designed so that all applicants and employees are treated similarly without regard to protected

characteristics such as race and sex. For example, suppose a vacant position requires applicants to

undergo a written job knowledge test and an interview to assess applicants. Anyone is free to apply for the

position, and all who apply will be given both the test and the interview. How well each performs on both screening methods determines who is hired. Thus, all applicants have an equal opportunity and the job will

be offered following an unbiased assessment.

Affirmative action (AA) focuses on procedures employers use to correct and abolish past discriminatory

employment practices against minority group members, women, and those in other groups, while setting

goals for hiring and promoting persons from underrepresented groups. AA may be voluntarily undertaken

by an employer or court ordered. In our previous example, AA could result if there was a failure to recruit

women and minority group members or if the job knowledge test was biased. Then management would

make a good faith effort to meet certain hiring goals, for instance, by improved recruiting.

Quotas are rigid hiring and promotion requirements. In our previous example, a hiring formula would be

set that specifies the number or percent of women and minorities to be hired.

These concepts, as applied in the workplace, have raised considerable legal turmoil and controversy over

whether in fact they have been successful in correcting discrimination. The issue of "reverse

discrimination" has intensified the debate. Court decisions provide guidelines for employers.

Diversity

Diversity in the workforce encompasses many different dimensions, including sex, race, natio-nal origin,

religion, age, and disability ( Byars and Rue, 1997 : 8). The workforce, historically dominated by white men,

is being increasingly replaced with workers from diverse backgrounds. DeCenzo and Robbins (2005 : 13)

write that much of the workforce change is attributed to federal legislation prohibiting discrimination, and

minority and female applicants are the fastest growing segments of the workforce. Projections for the

workforce show that half of the new entrants into the workplace will be women, the average age of

employees will climb, immigrant employees will have language and cultural differences, and as companies

become more global, there will be an increasing need to respond to the unique needs of individual

employees, including their languages, values, and customs. Diversity facilitates tolerance of different

behavioral styles and wider views, which can lead to greater responsiveness to diverse customers. The

challenge of learning to manage a diverse workforce is an investment in the future.

In August of 2000, ASIS International held a conference on "Women and Minorities in Security." The

conference was noteworthy because this field has been dominated by white males since the beginning.

The speakers were straightforward with the challenges facing minorities and the security industry. With an

increasingly diverse society, recruitment of women and minorities is essential; however, public and media

perceptions of security—often in a negative light—make recruitment difficult. Women have played an

increasing role in the industry, but more needs to be done to recruit more women, African Americans, and

Hispanics ( Hamit, 2000 : 60–62).

ASIS International is in a key position to take the lead to meet the challenges of diversity in the security

industry. Solutions include a recruitment campaign; improved partnering among the ASIS, proprietary and

contract security organizations, and colleges and universities; internships; and mentoring.

You Be the Judge [*]

Facts of the Case

When security officer Bronislav Zaleszny was passed over for promotion to supervisor, he decided that

his Eastern European origin was at least one of the reasons (his English was rather thickly accented).

So he went to the Equal Employment Opportunity Commission and filed a charge against his

employer, Hi-Mark Home Products, alleging discrimination on the basis of national origin.

During the month after the EEOC notified the company of the charge, Zaleszny's troubles multiplied.

First, Hi-Mark informed the police that products had been disappearing for months, that the

disappearances evidently had occurred during Zaleszny's shift, and that Zaleszny was a reasonable

suspect. Second, the company terminated him on suspicion of theft. Police arrested Zaleszny, but a

preliminary hearing resulted in dismissal of the charges against him.

Zaleszny fumed with anger at his former employer. He sued, alleging that Hi-Mark had prosecuted him

maliciously and had fired him in retaliation for his EEOC complaint. Exactly Who Prosecuted, and Exactly Who Knew about the EEOC Complaint?

In court, the company argued that Zaleszny's allegations really couldn't stand up to logical analysis.

"We didn't prosecute him, maliciously or otherwise," Hi-Mark noted. "We truthfully told the police

everything we knew about the disappearance of our products, and we said that on the basis of the

facts, Mr. Zaleszny seemed to us to be a logical suspect. Then, completely on their own discretion, the

police and the district attorney initiated charges against him. We disagree that the prosecution was

malicious, but whether it was or not, we're not the ones who prosecuted."

In answer to Zaleszny's retaliatory-firing allegation, Hi-Mark's director of corporate security took the

stand. "I'm the company official who recommended Mr. Zaleszny's termination," she testified, "and

when I made the recommendation, I didn't know about his EEOC complaint. Yes, the Commission had

notified our company, and yes, our HR department knew, but I didn't! And if I didn't know about the

complaint when I fired him, then the firing obviously wasn't a retaliation."

Did Zaleszny win his suit against Hi-Mark Home Products?

Make your decision; then turn to the end of the chapter for the court decision.

Sexual Harassment

The EEOC defines sexual harassment as unwelcome sexual conduct that has the purpose or effect of

unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or

offensive work environment. Although the Civil Rights Act was passed in 1964, only during the 1970s did

courts begin to recognize sexual harassment as a form of gender discrimination under Title VII. Thereafter,

the EEOC issued guidelines for determining what activity is sexual harassment, and these guidelines

influence courts.

The two theories upon which an action for sexual harassment may be brought are explained here. Quid

pro quo involves an employee who is required to engage in sexual activity in exchange for a workplace

benefit. For example, a male manager tells his female assistant that he will get her a promotion and raise if

she engages in sex with him. A second theory of sexual harassment is hostile working environment ,

which occurs when sexually offensive behavior by one party is unwelcome by another and creates

workplace difficulties. Examples include unwelcome suggestive remarks or touching, and posted jokes or

photos of a sexual nature.

Employers, who are vicariously liable for sexual harassment, must take immediate and appropriate

corrective action; otherwise, civil and criminal legal action can be devastating. Besides legal action for

harassment, these tort actions may be initiated: assault, battery, intentional infliction of emotional distress,

and false imprisonment. In addition, these criminal charges may be filed: assault, battery, and sexual

assault.

Bryant (2006 : 50–58) notes that harassment claims go beyond sexual harassment and involve allegations

of unlawful discrimination against members of any of the "protected classes." She writes that to file a

discrimination lawsuit, most individuals obtain a right-to-sue letter from the EEOC and then contact a

private attorney. However, in some cases the EEOC initiates action. Bryant categorizes actionable

workplace harassment of a nonsexual nature into three groups:

◾ Harassment because of an individual's affiliation or association with a particular religious or

ethnic group. Examples are harassing a person who is of the Islamic faith, paying an

employee less because of being Hispanic, or intimidating an individual who associates with a

particular religious or ethnic group.

◾ Harassment because of physical or cultural traits. Examples are harassment of a Muslim

woman for wearing a headscarf or not hiring a man because he has an accent.

◾ Harassment because of perception pertains to bullying. The National Institute for

Occupational Safety and Health defines bullying as "repeated intimidation, slandering, social

isolation, or humiliation by one or more persons against another." The following list offers guidance when taking action against the problem of sexual harassment and other

types of workplace harassment ( Bryant, 2006 : 50–58; Warfel, 2005 : 14–20):

1. Ensure that top management takes the lead to establish a zero tolerance policy.

2. Communicate the policy and reporting procedures to all employees, including strong

prohibitions against retaliation for reporting.

3. Provide relevant training.

4. Ensure that reported incidents are taken seriously and thoroughly and promptly investigated,

and that corrective action is taken if the allegations are true.

5. Ensure that the human resources department is notified about each complaint.

6. Maintain confidentiality, providing information only on a "need to know" basis.

Cases of Sexual Harassment

Sexual harassment can occur in any work environment, from the fields to the factory floor to the

boardroom. Teenagers are a group particularly vulnerable to sexual harassment. Many of EEOC's

suits involving the harassment of young women occur in the setting of restaurants and retail

establishments, typical part-time jobs for teens ( Equal Employment Opportunity Commission, Office of

General Counsel, 2005 ). In EEOC v. Midamerica Hotels Corp. d/b/a Burger King (E.D. Mo. Dec. 7,

2004), at a Burger King franchise in Missouri, the EEOC found evidence that a restaurant manager

subjected female employees, most of them teenagers, to repeated groping, sexual comments, and

demands for sex. The women complained to their first line supervisors and to a district manager, but

no action was taken until they learned how to contact the corporate office. Under a consent decree,

the company will pay a total of $400,000 to seven women, and is prohibited from future sex

discrimination and from rehiring the restaurant manager. In addition, the company, which operates 37

Burger King restaurants in four states, will distribute its sexual harassment policy, complaint

procedure, and hotline information to all current employees and new hires at its restaurants. The

company also will display in all restaurants a new poster containing information about its sexual

harassment policy, place the hotline number and an explanation of the sexual harassment policy on all

employee paychecks, and require managers to attend sexual harassment training.

In another case, EEOC v. Carmike Cinemas, Inc . (E.D.N.C. Sept. 26, 2005), teenage boys were the

victims in a case against a large movie theater chain. A 29-year-old male concessions manager in the

chain's Raleigh, North Carolina, theater subjected 16- and 17-year-old boys he supervised to offensive

verbal and physical sexual conduct over a 9-month period. The manager had previously served more

than two years in prison after being convicted of two counts of taking indecent liberties with a minor.

Several of the boys complained about the manager, but the theater failed to take corrective action.

The manager was finally discharged only when he violated the company's "no call/no show" rule,

occasioned by his arrest for failing to register as a sex offender. Under a consent decree, 14 victims

will share $765,000 and the company is prohibited from future discrimination. In addition, the company

will take the following actions at 13 theaters in North Carolina and Virginia: revise its sexual

harassment policy, provide a copy to all new employees, display an 11- by 17-inch poster

summarizing the policy, provide sexual harassment training to all new employees at the time of hire

and annually to all managers and employees, and report semiannually to the EEOC on complaints of

sexual harassment by employees, including the identities of the complainant and alleged harasser and

the action taken by the company.

[*]Reprinted with permission from Security Management Bulletin , a publication of the Bureau of Business

Practice, Inc., 24 Rope Ferry Road, Waterford, CT 06386.

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