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The laws and regulations on hiring and managing talent are dynamic and impact today’s practice. Practices that might have been acceptable two decades ago could likely be prohibited under today’s federal hiring practices. Research a case law for discrimination then write a two- to four-page analysis addressing the points listed below. Use the APA writing style and a minimum of two scholarly and/or credible sources in addition to the text. In your analysis,


Identify the case.

Explain the specific      discrimination.

Summarize the case issue,      findings, and outcome.

Explain how the findings from      the case are applied to today’s practices.


The Applied Psychology and Changing Demographics paper

REFERENCE: Cascio, W. F., & Aguinis, H. (2019). Applied psychology in talent management (8th ed.).
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Chapter 1:
The Pervasiveness of Organizations
Throughout our lives, each of us is deeply touched by organizations of one form or another. In the
normal course of events, a child will be exposed to a school organization, a church or a religious
organization, and perhaps a Little League or a Boy or Girl Scouts organization, as well as the social
organization of the local community. After leaving the school organization, the young person may
choose to join a military, business, or government organization, and as his or her career unfolds, the
person probably will move across several different organizations. The point is simply that our everyday
lives are inseparably intertwined with organizational memberships of one form or another.
What common characteristics unite these various activities under the collective label organization? The
question is not an easy one to answer. Many different definitions of the term have been suggested, and
each definition reflects the background and theoretical point of view of its author with respect to what
is relevant or important. Yet certain fundamental elements recur in these definitions.
In general, an organization is a collection of people working together in a division of labor to achieve a
common purpose (Hitt, Miller, & Collela, 2014). Another useful concept views an organization as a
system of inputs, throughputs, and outputs. Inputs (raw materials) are imported from the outside
environment, transformed or modified (e.g., every day tons of steel are molded into automobile bodies),
and finally exported or sold back into the environment as outputs (finished products). Although there
are many inputs to organizations (energy, raw materials, information, etc.), people are the basic
ingredients of all organizations, and social relationships are the cohesive bonds that tie them together
(see Figure 1.1).
The Pervasiveness of Organizations
Throughout our lives, each of us is deeply touched by organizations of one form or another. In the
normal course of events, a child will be exposed to a school organization, a church or a religious
organization, and perhaps a Little League or a Boy or Girl Scouts organization, as well as the social
organization of the local community. After leaving the school organization, the young person may
choose to join a military, business, or government organization, and as his or her career unfolds, the
person probably will move across several different organizations. The point is simply that our everyday
lives are inseparably intertwined with organizational memberships of one form or another.
What common characteristics unite these various activities under the collective label organization? The
question is not an easy one to answer. Many different definitions of the term have been suggested, and
each definition reflects the background and theoretical point of view of its author with respect to what
is relevant or important. Yet certain fundamental elements recur in these definitions.
In general, an organization is a collection of people working together in a division of labor to achieve a
common purpose (Hitt, Miller, & Collela, 2014). Another useful concept views an organization as a
system of inputs, throughputs, and outputs. Inputs (raw materials) are imported from the outside
environment, transformed or modified (e.g., every day tons of steel are molded into automobile bodies),
and finally exported or sold back into the environment as outputs (finished products). Although there
are many inputs to organizations (energy, raw materials, information, etc.), people are the basic
ingredients of all organizations, and social relationships are the cohesive bonds that tie them together
(see Figure 1.1).
This book is about people as members and resources of organizations and about what applied
psychology can contribute toward helping organizations make the wisest, most humane use of human
resources. At the outset, let’s be clear about the definition of some important terms. Applied
psychology, as used in this book, is a branch of psychology that seeks to apply psychological principles to
practical problems in organizations. Talent management is the process through which organizations
anticipate and meet their needs for talent in strategic jobs (Cappelli & Keller, 2017). Talent management
is part of the broader field of human resource management (HRM)—an overall approach to
management that comprises staffing, retention, development, adjustment, and managing change
(Cascio, 2018). Personnel psychology, a subfield of industrial and organizational (I/O) psychology, is
concerned with individual differences in behavior and job performance and with methods for measuring
and predicting such differences. We consider some of the sources of these differences in the sections
that follow.
Differences in Jobs
In examining the world of work, one is immediately awed by the vast array of goods and services that
have been and are being produced as a result of organized effort. This great variety ranges from the
manufacture of tangible products—such as food, automobiles, plastics, paper, textiles, and glassware—
to the provision of less tangible services—such as legal counsel, health care, police and fire protection,
and education. Thousands of jobs are part of our work-a-day world, and the variety of tasks and human
requirements necessary to carry out this work is staggering. Faced with such variability in jobs and their
requirements on the one hand, and with people and their individual patterns of values, aspirations,
interests, and abilities on the other, programs for the efficient use of human resources are essential.
Differences in Performance
People represent substantial investments by firms—as is immediately evident when one stops to
consider the costs of recruiting, selecting, placing, and training as many people as there are
organizational roles to fill. But psychology’s first law is that people are different. People differ in size,
weight, and other physical dimensions, as well as in aptitudes, abilities, personality, interests, and
myriad other psychological dimensions. People also differ greatly in the extent to which they are willing
and able to commit their energies and resources to the attainment of organizational objectives.
If we observe a group of individuals doing the same kind of work, it will soon be evident that some are
more effective workers than others. For example, if we observe a group of carpenters building cabinets,
we will notice that some work faster than others, make fewer mistakes than others, and seem to enjoy
their work more than others. These observations pose a question of psychological interest: Why? That
is, what “people differences” cause these “work differences”? Perhaps these variations in effectiveness
are due to differences in abilities. Some of the carpenters may be stronger, have keener eyesight, and
have more finely developed motor coordination than others. Perhaps another reason for the observed
differences in behavior is motivation. At any given point in time, the strength of forces impelling an
individual to put forth effort on a given task, or to reach a certain goal, may vary dramatically. In other
words, differences in individual performance on any task, or on any job, could be due to differences in
ability, or to differences in motivation, or to both. This has clear implications for the optimal use of
individual talents in our society.
A Utopian Ideal
In an idealized existence, our goal would be to assess each individual’s aptitudes, abilities, personality,
and interests; to profile these characteristics; and then to place all individuals in jobs perfectly suited to
them and to society. Each individual would make the best and wisest possible use of his or her talents,
while in the aggregate, society would be making maximal use of its most precious resource.
Alas, this ideal falls far short in practice. The many, and often gross, mismatches between individual
capabilities and organizational roles are glaringly obvious even to the most casual observer—history
Ph.D.s driving taxicabs for lack of professional work, and young people full of enthusiasm, drive, and
intelligence placed in monotonous, routine, dead-end jobs.
Point of View
In any presentation of issues, it is useful to make explicit underlying assumptions. The following
assumptions have influenced the presentation of this book:
In a free society, every individual, regardless of race, age, gender, disability, religion, national origin, or
other characteristics, has a fundamental and inalienable right to compete for any job for which he or she
is qualified.
Society can and should do a better job of making the wisest and most humane use of its human
Individuals working in the field of human resources and managers responsible for making
employment decisions must be as technically competent and well informed as possible, since their
decisions will materially affect the course of individual livelihoods and lives. Personnel psychology holds
considerable potential for improving the caliber of HRM in organizations. Several recent developments
have combined to stimulate this growing awareness. After first describing what personnel psychology is,
we will consider the nature of some of these developments.
Personnel Psychology and Talent Management in Perspective
People have always been subjects of inquiry by psychologists, and the behavior of people at work has
been the particular subject matter of industrial and organizational (I/O) psychology. Yet sciences and
subdisciplines within sciences are distinguished not so much by the subject matter they study as by the
questions they ask. Thus, both the social psychologist and the engineering psychologist are concerned
with studying people. The engineering psychologist is concerned with the human aspects of the design
of tools, machines, work spaces, information systems, and aspects of the work environment. The social
psychologist studies power and influence, attitude change, communication in groups, and individual and
group social behavior.
As noted earlier, personnel psychology is a subfield within I/O psychology. Some of the major areas of
interest to personnel psychologists include job analysis and job evaluation; recruitment, screening, and
selection; training and development; and performance management.
Personnel psychology and talent management overlap both psychology and the broader field of HRM.
Both exclude, for example, such topics as labor and compensation law, organization theory, industrial
medicine, collective bargaining, and employee benefits. Psychologists have already made substantial
contributions to the field of HRM; in fact, most of the empirical knowledge available in such areas as
motivation, leadership, and staffing is due to their work. Over the past decade, dramatic changes in
markets, technology, demographics, organizational designs, the “psychological contract,” and the
respective roles of managers and workers have inspired great emphasis on and interest in personnel
psychology and talent management (Cascio, 2010; Cascio & Boudreau, 2016). The following sections
consider each of these topics in more detail. Figure 1.2 illustrates them graphically.
Globalization of Product and Service Markets
Globalization—the ability of any individual or company to compete, connect, exchange, or collaborate
globally—is exploding. The ability to digitize so many things, to send them anywhere and to pull them in
from everywhere via our mobile phones and the Internet, has unleashed a torrent of global flows of
information and knowledge. Global flows of commerce, finance, credit, social networks, and more are
interlacing markets, media, central banks, companies, schools, communities, and individuals more
tightly together than ever before (Cascio, 2018). That same connectivity is also making individuals and
institutions more interdependent. As author Tom Friedman notes, “Everyone everywhere is now more
vulnerable to the actions of anyone anywhere” (Friedman, 2016, p. 27). Product and service markets
have truly become globalized.
Global labor markets are another feature of globalization, created by cheap labor and plentiful
resources, combined with ease of travel and communication. This is fueling mobility as more companies
expand abroad and people consider foreign postings as a natural part of their professional development.
Beyond the positive effects that such circulation of talent brings to both developed and developing
countries, it enables employment opportunities well beyond the borders of one’s home country
(Dulebohn & Hoch, 2017). This means that competition for talent will come not only from the company
down the street but also from the employer on the other side of the world (Economist Intelligence Unit,
Consider three other emerging trends spawned by globalization (Cascio, 2018). The first is increasing
workforce flux as more roles are automated or outsourced and more workers are contract based, are
mobile, or work flexible hours. This may allow companies to leverage global resources more efficiently,
but it also will increase the complexity of management’s role. Second, expect more diversity as workers
come from a greater range of backgrounds. Those with local knowledge of an emerging market, a global
outlook, and an intuitive sense of the corporate culture will be particularly valued. Not surprisingly,
talented young people will more frequently choose their employers based, at least in part, on
opportunities to gain international experience. Finally, technical skills, although mandatory, will be less
defining of the successful manager than the ability to work across cultures and to build relationships
with many different constituents (Lublin, 2011; McGovern, 2017).
Why then, is there sometimes a backlash against globalization? It stems largely from a fear on the part
of many people that globalization benefits big companies instead of average citizens, as stagnating
wages and growing job insecurity in developed countries create rising disenchantment. In theory, lessdeveloped countries win from globalization because they get jobs making low-cost products for rich
countries. Rich countries win because, in addition to being able to buy inexpensive imports, they also
can sell more sophisticated products, like financial services, to emerging economies. The problem,
according to many experts, is that workers in the West are not equipped for today’s pace of change, in
which jobs come and go and skills can quickly become redundant (Brynjolfsson & McAfee, 2014;
Friedman, 2016).
Despite these concerns, economic interdependence among the world’s countries will continue. Global
corporations will continue to be created through mergers and acquisitions of unparalleled scope. These
mega-corporations will achieve immense economies of scale and compete for goods, capital, and labor
on a global basis. As a result, prices will drop, and consumers will have more options than ever
(Bhagwati, 2007; Ghemawat, 2017).
It takes more than trade agreements, technology, capital investment, and infrastructure, however, to
deliver world-class products and services. It also takes the skills, ingenuity, and creativity of a
competent, well-trained workforce. Workers with the most advanced skills create higher value products
and services and reap the biggest rewards. Attracting, developing, and retaining talent in a culture that
supports and nurtures ongoing learning is a continuing challenge for all organizations. Human resource
professionals are at the epicenter of that effort.
Impact on Jobs and the Psychological Contract
The job churning that characterized the labor market in the 1990s and early twenty-first century has not
let up. If anything, its pace accelerated during and after the Great Recession (Farber, 2011; Schwartz,
2009). Both white- and blue-collar jobs aren’t being lost temporarily because of a recession; rather, they
are being wiped out permanently as a result of new technology, improved machinery, and new ways of
organizing work (Friedman, 2016; Hamlin & Roberts, 2017). These changes have had, and will continue
to have, dramatic effects on organizations and their people.
Corporate downsizing has become entrenched in American culture since the 1980s, but it was not
always so. It was not until the final 20 years of the 20th century that such downsizing and the loss of the
perceived “psychological contract” of lifelong employment with a single employer in the public and
private sectors of the economy came to characterize many corporate cultures and the American
workforce (Cascio, 1993b, 2002a, 2002b). The psychological contract refers to an unwritten agreement
in which the employee and employer develop expectations about their mutual relationship (Payne,
Culbertson, & Boswell, 2008; Rousseau, 1995). For example, absent just cause, the employee expects
not to be terminated involuntarily, and the employer expects the employee to perform to the best of his
or her ability.
Stability and predictability characterized the old psychological contract. In the 1970s, for example,
workers held an average of three to four jobs during their working lives. Change and uncertainty,
however, are hallmarks of the new psychological contract. Soon workers will hold 7–10 jobs during their
working lives. Job-hopping no longer carries the stigma it once did. Indeed, the massive downsizing of
employees has made job mobility the norm rather than the exception. This has led workers operating
under the new psychological contract to expect more temporary employment relationships. Paternalism
on the part of companies has given way to self-reliance on the part of employees, and also to a decrease
in satisfaction, commitment, intentions to stay, and perceptions of an organization’s trustworthiness,
honesty, and concern for its employees (Lester, Kickul, Bergmann, & De Meuse, 2003; Llopis, 2013).
Indeed, our views of hard work, loyalty, and managing as a career will probably never be the same.
Demographically, today’s organizations are more diverse than ever before. They comprise more women
at all levels; more multiethnic, multicultural workers; older workers; younger workers; more workers
with disabilities; robots; and contingent workers. Consider some of the contours of these changes.
Around the globe, the number as well as the mix of people available to work are changing rapidly. The
U.S. labor force is aging, as the proportion of the labor force composed of people aged 55 and older
rises from 19% in 2010 to 24% in 2050. As Figure 1.3 shows, by 2040 the non-Hispanic white population
is projected to drop below 50%, with Hispanics making up more than a quarter of the population, and
Asians, African Americans, and other ethnic groups constituting the rest. Immigration is projected to
account for 88% of U.S. population growth over the next 50 years, such that by 2055 there will be no
majority racial or ethnic group. Globally, the United Nations estimates that by 2060, for every 100
people of working age, there will be 30 people who are 65 and older. That is more than double the ratio
of old to young people today. Because of low birth rates, the age wave is more acute in developed
countries, increasing the cost of social programs and limiting economic growth. Younger migrants may
ease that pain, however (“The first world is aging,” 2015; Jordan, 2015).
In developed economies, many employers are unable to find people with the skill sets they need. By
2020, that talent gap could reach 1.5 million people in the United States and as many as 23 million in
China (Lund et al., 2012; Qi, 2017). These trends have two key implications: (1) The reduced supply of
workers (at least in some fields) will make finding and keeping employees a top priority, and (2) the task
of managing a diverse workforce, of harnessing the motivation and efforts of a wide variety of workers,
will present a continuing challenge.
Earlier we noted that more women than ever are found at all levels of organizations. Women constitute
47% of the U.S. workforce, and they hold 52% of all managerial and professional positions. So much for
the myth that women don’t hold high-level business jobs because they supposedly don’t aim high
enough (Catalyst, 2016; U.S. Bureau of Labor Statistics, 2015). Age diversity is even more pronounced. At
present, five generations comprise the U.S. workforce: The silent generation (born 1930–1945); the
baby boom generation (born 1946–1964); Generation X (born 1965–1980); Generation Y, also known as
millennials (born 1981–1995); and Generation Z (born 1996–2010).
Evidence from time-lag and cross-sectional studies suggests that, despite a number of similarities, the
generations in today’s workplace differ in aspects of their personalities, work values and attitudes,
leadership and teamwork preferences, leader behaviors, and career experiences (Lyons & Kuron, 2014;
Twenge, 2010). Meta-analytic results, however, indicate that the relationships between generational
membership and work-related outcomes (job satisfaction, organizational commitment, and intent to
quit) are moderate to small, essentially zero in many cases. Differences that appear to exist are likely
attributable to factors other than generational membership (Costanza, Badger, Fraser, Severt, & Gade,
2012). An overarching theme across studies, however, is that individualism characterizes all generations
(Twenge, 2012). An open question is the extent to which observed differences will remain stable or shift
over time as the generations move through their respective life courses and career stages.
Age-based stereotypes are common (Posthuma & Campion, 2009), particularly among older workers,
but this is just as true for middle-aged and younger workers (Finkelstein, Ryan, & King, 2013). As those
authors noted, supervisors can serve as powerful ambassadors of positive age-diverse interactions, both
by embodying and facilitating positive views of outgroup members and by promoting open
communication and treating people as individuals. To support an aging workforce, Truxillo, Cadiz, and
Hammer (2015) outlined 11 possible interventions, from work redesign to optimizing total worker
What are the implications for leaders? First, individual differences are always bigger than generational
differences (Schumpeter, 2015). Generational differences are manifestations of broader trends in
society and work that continue to evolve as the generations move through their respective life courses.
Leaders cannot simply assume that past management practices will work in the modern context and
that today’s practices will work in the future (Lyons & Kuron, 2014). They should focus on finding
qualified employees who best fit the organization’s values and HR practices rather than attempting to
craft strategies to attract the average member of a generation. For example, an organization that
emphasizes high commitment might emphasize work–life fit and flexible schedules, while looking for
workers who are enthusiastic and hardworking, and who have the requisite skills and experience the
organization needs.
It should be clear by now that we are in the midst of a revolution—a revolution at work. Twenty-firstcentury organizations, both large and small, differ dramatically in structure, design, and demographics
from those of even a decade ago. Paternalism is out; self-reliance is in. There is constant pressure to do
more with less and a steady emphasis on empowerment, cross-training, personal flexibility, selfmanaged work teams, and continuous learning. Workers today have to be able to adapt to changing
circumstances and to be prepared for multiple careers. Job security (the belief that one will retain
employment with the same organization until retirement) has become less important to workers than
employment security (having the kinds of skills that employers in the labor market are willing to pay
for). In our next section we consider some organizational responses to these new realities.
Implications for Organizations and Their People
In a world where virtually every factor that affects the production of goods or the delivery of services—
capital, equipment, technology, and information—is available to every player in the global economy, the
one factor that doesn’t routinely move across national borders is a nation’s workforce. Today the quality
of a nation’s workforce is a crucial determinant of its ability to compete and win in world markets.
Human resources can be sources of sustained competitive advantage as long as they meet three basic
requirements: (1) They add positive economic benefits to the process of producing goods or delivering
services; (2) the skills of the workforce are distinguishable from those of competitors (e.g., through
education and workplace learning); and (3) such skills are not easily duplicated (Barney, 1991). A human
resource system (the set of interrelated processes designed to attract, develop, and maintain human
resources) can either enhance or destroy this potential competitive advantage (Lado & Wilson, 1994).
Perhaps a quote attributed to Albert Einstein, the famous physicist, best captures the position of this
book. After the first atomic reaction in 1942, Einstein remarked: “Everything has changed, except our
way of thinking” (Workplace of the Future, 1993, p. 2). As I/O psychology in general, and talent
management in particular, move deeper into the 21st century, our greatest challenge will be to change
the way we think about organizations and their people. As just one example, consider how the digital
revolution will affect the workplace of the future, and some emerging research needs in that area
(Colbert, Yee, & George, 2016).
There is no doubt that the increasing prevalence of technology influences the way people approach
work. We are in near-constant communication with one another, and our lives are chronicled for friends
and followers in real time on social media. At the same time, people vary in their proficiency and
comfort in achieving desired outcomes at work using technology, often referred to as “digital fluency”
(Briggs & Makice, 2012). Clearly, research is needed to fully understand how digital fluency may
influence job performance and career progression across a range of professions, as well as how it affects
conflict and collaboration in diverse groups (Colbert et al., 2016).
Digitally fluent or not, the effects of technology at work may be both positive and negative. On the
positive side, technology has facilitated leaps in productivity, collaboration, and connectivity with others
that were unimaginable a few decades ago. At the same time, however, the ubiquitous presence of
technology in our lives may limit opportunities to develop deep levels of self-awareness and to behave
authentically, especially among those who spend lots of time in online worlds and working with avatars.
Managers and organizations need to consider how to address the possibility of reduced self-awareness
and authenticity among members of the digital workforce while also remaining aware of the ways that
technology might be used to promote healthy identity development (Colbert et al., 2016). To be sure,
the prevalence of technology in our daily lives may affect the quality of our interactions with others and
may lead to a decline in our level of empathy (a cognitive understanding of another’s perspective and an
affective response to another’s experiences). Meta-analysis revealed that dispositional empathy levels
decreased between 1979 and 2009 among college students in the United States (Konrath, O’ Brien, &
Hsing, 2011). A possible reason for this finding is that the kinds of fully present, face-to-face interactions
that foster empathy have become less common in a world of digital communication. More research is
needed to fully understand how digitally mediated communication may influence communication,
relationship quality, and empathy, especially in the workplace (Colbert et al., 2016).
In our “always-on” society, technology has blurred boundaries between work and nonwork, sometimes
to our detriment. Thus, in a study of the daily intrusions of e-mail in nonworking hours, Butts, Becker,
and Boswell (2015) found that time required to respond to e-mail outside of work was associated with
higher levels of anger, which in turn led to increased work–family conflict. Research is just beginning to
provide guidance on how organizations can most effectively manage the digital workforce and leverage
technology while avoiding potential downsides.
To be sure, the future world of work will not be a place for the timid, the insecure, or the low skilled. For
those who thrive on challenge, responsibility, and risk taking, security will come from seizing
opportunities to adapt and to develop new competencies (Gunz & Peiperl, 2007; Hall & Mirvis, 1995).
The need for competent HR professionals with broad training in a variety of areas has never been
Plan of the Book
In Chapter 2, we explore a pivotal issue in HRM today: legal requirements for fair employment practice.
In particular, we emphasize employment protections in the U.S. Constitution, civil rights laws, and
relevant case law. The remainder of the book focuses in greater depth on some of the major issues in
contemporary personnel psychology. Each chapter outlines the nature of the topic under consideration,
surveys past practice and research findings, describes present issues and procedures, and, where
relevant, indicates future trends and new directions for research.
The goal of Chapters 3 through 5 is to provide the reader with a strategy for viewing the employmentdecision process and an appreciation of the issues associated with assessing its outcomes. Chapter 3
presents an integrative model in which the major areas of personnel psychology are illustrated as a
network of sequential, interdependent decisions. The model then provides a structure for the rest of the
book, as well as a conceptual framework from which to view the complex process of matching
individuals and jobs.
In Chapter 4, we focus on one of the most persistent and critical problems in the field of talent
management, that of developing and applying adequate performance criteria. A thorough
understanding and appreciation of the criterion problem is essential, for it is relevant to all other areas
of HRM, especially to performance management.
In Chapter 5, we examine current methods, issues, and problems associated with the performance
management process, of which performance appraisal is a key component. The objective of
performance management is to improve performance at the level of the individual or team every day.
The first part of the book presents fundamental concepts in applied measurement that underlie all
employment decisions. Chapters 6 and 7 represent the core of personnel psychology—measurement
and validation of individual differences. After comparing and contrasting physical and psychological
measurement, we consider the requirements of good measurement (reliability and validity) and the
practical interpretation and evaluation of measurement procedures. As a capstone to this part of the
text, Chapter 8 is devoted entirely to a consideration of the issue of fairness in employment decisions.
Taken together, Chapters 2 through 8 provide a sound basis for a fuller appreciation of the topics
covered in the remainder of the book.
To provide a job-relevant basis for employment decisions, information on jobs, work, and workforce
planning is essential. This is the purpose of Chapters 9 and 10. In Chapter 9, we examine work analysis
(the study of the work to be done, the skills needed, and the training required of the individual
jobholder). It is the touchstone for all employment decisions. In Chapter 10, we consider strategic
workforce planning. The goal of a strategic workforce-planning system is to anticipate an organization’s
future staffing requirements and, based on an inventory of present employees, to establish action
programs (e.g., in recruitment, training, and deployment) to prepare individuals for future jobs. The
chapter emphasizes tying current strategic workforce-planning theory to practice.
Chapters 11 through 14 are concerned with staffing—specifically, recruitment and selection. In Chapter
11, we consider the theoretical and practical aspects of recruitment, emphasizing both traditional and
Internet-based strategies. Chapter 12 is the first of two chapters on selection methods. Its particular
focus is on nontest techniques such as personal-history data and employment interviews. Chapter 13 is
the second chapter on selection methods, with particular emphasis on managerial selection. Chapter 14
demonstrates how material from the previous three chapters can be integrated into alternative
strategies for making selection decisions.
Chapters 15 and 16 focus on the design, implementation, and evaluation of training and development
activities for individuals and teams. These topics have drawn special attention in HRM, especially in light
of the need to develop skills continually in a dynamic business environment.
The last part of the book comprises Chapters 17 and 18. Chapter 17, “International Dimensions of Talent
Management,” examines the effects of culture on many topics considered earlier in the book.
Globalization implies more, not less, contact with cultures other than one’s own. Personnel psychology
has much to contribute, from identifying international management potential early on to selecting,
training, developing, and managing the careers of expatriates.
Finally, Chapter 18 addresses organizational responsibility and ethical issues in talent management and
HRM. Responsible organizations consider the expectations of multiple stakeholders as well as the triple
bottom line of economic, social, and environmental performance. As for ethical questions in talent
management and HRM, there are no easy answers but public discussion of these questions is essential if
genuine progress is to be made. Now that we have considered the “big picture,” let’s begin our
treatment in Chapter 2 by examining the legal environment within which employment decisions are
2 The Law and Talent Management
Comprehensive employment-related legislation, combined with increased motivation on the part of
individuals to rectify unfair employment practices, makes the legal aspects of employment among the
most dominant issues in human resource management today. All three branches of the federal
government have been actively involved in ongoing efforts to guarantee equal employment opportunity
(EEO) as a fundamental individual right, regardless of race, color, age, gender, religion, national origin, or
All aspects of the employment relationship, including initial screening, recruitment, selection,
placement, compensation, training, promotion, and performance management, have been addressed by
legislative and executive pronouncements and by legal interpretations from the courts. With growing
regularity, I/O psychologists and HR professionals are being called on to work with attorneys, the courts,
and federal regulatory agencies. It is imperative, therefore, to understand thoroughly the rights as well
as obligations of individuals and employers under the law and to ensure that these are translated into
everyday practice in accordance with legal guidelines promulgated by federal regulatory agencies.
Affirmative action involves a proactive examination of whether equality of opportunity exists. If it does
not, a plan is implemented for taking concrete measures to eliminate the barriers and to establish true
equality (Society for Human Resource Management, 2016b). Affirmative action has become a fact of
modern organizational life. To ignore it is to risk serious economic, human, and social costs.
Every public opinion poll based on representative national samples drawn between 1950 and the
present shows that a majority of Americans—black, brown, and white—support EEO and reject
differential treatment based on race, regardless of its alleged purposes or results. There is agreement
about the ends to be achieved, but there is disagreement about the means to be used (Von Drehle,
2003). EEO has been, and is still, an emotionally charged issue. Congress has provided sound legal bases
for effecting changes in EEO through sweeping civil rights legislation. Subsequently, thousands of
dissatisfied groups and individuals have won substantial redress on many issues by availing themselves
of their legal rights. The combination of the motivation to rectify perceived inequities and an easily
available legal framework for doing so has made the legal aspects of the employment relationship a
dominant issue in HRM today.
It is imperative, therefore, that I/O psychologists and HR professionals understand the rights and
obligations of individuals and employers in this most delicate area. They must be able to work with
attorneys (and vice versa), for neither can succeed alone. Each group has a great deal to contribute in
order to identify vulnerable employment policies and practices, to make required adjustments in them,
and thus to minimize the likelihood of time-consuming and expensive litigation. Let’s begin, therefore,
with an overview of the legal system, legal terminology, important laws and court decisions, and
underlying legal and scientific issues.
The U.S. Legal System
Above the complicated network of local, state, and federal laws, the U.S. Constitution stands as the
supreme law of the land. Certain powers and limitations are prescribed to the federal government by
the Constitution; those powers not given to the federal government are considered to be reserved for
the states. The states, in turn, have their own constitutions that are subject to, and must remain
consistent with, the U.S. Constitution.
Whereas certain activities are regulated exclusively by the federal government (e.g., interstate
commerce), other areas are subject to concurrent regulation by federal and state governments (e.g.,
equal employment opportunity). It should be emphasized, however, that in the event of a conflict
between a state law and the U.S. Constitution (or the laws enacted by Congress in accordance with it),
the federal requirements take precedence. Thus, any state or local law that violates the Constitution or
federal law is, in effect, unconstitutional. Therefore, it is no defense to argue that one is acting according
to such a state or local law.
The legislative branch of government (Congress) enacts laws, called statutes, which are considered
primary authority. Court decisions and the decisions and guidelines of regulatory agencies are not laws,
but interpretations of laws for given situations in which the law is not specific. Nevertheless, these
interpretations form a complex fabric of legal opinion and precedent that must be given great deference
by the public.
Let’s consider the judicial system, one of the three main branches of government (along with the
executive and legislative branches), more closely. The judicial power of the United States is vested “in
one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish”
according to Article III of the Constitution. The system of “inferior” (i.e., lower) courts includes the U.S.
district courts, the federal trial courts in each state. These courts hear cases that fall under federal
jurisdiction, usually either cases between citizens of different states or cases relevant to the Constitution
or federal law.
Decisions of these lower federal courts may be appealed to 1 of 12 U.S. courts of appeals, corresponding
to the geographic region or “circuit” in which the case arose (see Figure 2.1). In turn, these courts’
decisions may be appealed to the U.S. Supreme Court—not as a matter of right, but only when the
Supreme Court feels that the case warrants a decision at the highest level. Generally, the Supreme Court
will grant certiorari (review) when two or more circuit courts have reached different conclusions on the
same point of law or when a major question of constitutional interpretation is involved. If the Supreme
Court denies a petition for a writ of certiorari, then the lower court’s decision is binding.
The state court structure parallels the federal court structure, with state district courts at the lowest
level, followed by state appellate (review) courts, and finally by a state supreme court. State supreme
court decisions may be reviewed by the U.S. Supreme Court when a question of federal law is involved
or when the judicial power of the United States extends as defined by the U.S. Constitution. In all other
instances, the state supreme court decision is final.
EEO complaints may take any one of several alternative routes (see Figure 2.2). By far the simplest and
least costly alternative is to arrive at an informal, out-of-court settlement with the employer. Often,
however, the employer does not have an established mechanism for dealing with such problems. Or, if
such a mechanism does exist, employees or other complainants are unaware of it or are not encouraged
to use it. So the complainant must choose more formal legal means, such as contacting state and local
fair employment practice agencies (where they exist), federal regulatory agencies (e.g., the Equal
Employment Opportunity Commission or the Office of Federal Contract Compliance Programs), or the
federal and state district courts. At this stage, however, solutions become time consuming and
expensive. Litigation is a luxury that few can afford. Perhaps the wisest course of action an employer can
take is to establish a sound internal complaint system to deal with problems before they escalate to
formal legal proceedings.
Legal Systems Outside the United States
It is beyond the scope of this chapter to examine comparative legal systems or comparative
employment law. At the same time, I/O psychologists and HR professionals might find useful
perspectives from 22 countries on the legal environment for staffing (Myors et al., 2008a, 2008b). Those
perspectives address issues such as (a) whether racial, ethnic, or religious subgroups are viewed as
“disadvantaged,” (b) whether research supports mean differences between groups on individual
difference measures relevant to job performance, (c) whether there are laws prohibiting discrimination
against specific groups, (d) the evidence required to make and refute a claim of discrimination, (e) the
consequences of violation of the laws, (f) whether particular selection methods are limited or banned,
(g) whether preferential treatment of members of disadvantaged groups is permitted, and (h) whether
the practice of I/O psychology has been affected by the legal environment. Of course, it is always wise to
seek professional legal advice on specific questions relevant to any given country.
Unfair Discrimination: What Is It?
No law has ever attempted to define precisely the term discrimination. However, in the employment
context, it can be viewed broadly as the giving of an unfair advantage (or disadvantage) to the members
of a particular group in comparison to the members of other groups. The disadvantage usually results in
a denial or restriction of employment opportunities or in an inequality in the terms or benefits of
Whenever there are more candidates than available positions, it is necessary to select some candidates
in preference to others. Selection implies exclusion. As long as the exclusion is based on what can be
demonstrated to be job-related criteria, however, that kind of discrimination is entirely proper. It is only
when candidates are excluded on a prohibited basis not related to the job (e.g., age, race, gender, or
disability) that unlawful and unfair discrimination exists. Despite federal and state laws on these issues,
they represent the basis of an enormous volume of court cases, indicating that stereotypes and
prejudices do not die quickly or easily. Discrimination is a subtle and complex phenomenon that may
assume two broad forms (see Figure 2.3):
Unequal (disparate) treatment is based on an intention to discriminate, including the intention to
retaliate against a person who opposes discrimination, who has brought charges, or who has
participated in an investigation or hearing. There are three major subtheories of discrimination within
the disparate treatment theory:
(a) Cases that rely on direct evidence of the intention to discriminate. Such cases are proven with
direct evidence of pure bias based on an open expression of hatred, disrespect, or inequality, knowingly
directed against members of a particular group. For example, a blanket exclusionary policy might
deliberately exclude from employment an individual whose disability (e.g., an impairment of her ability
to walk) has nothing to do with the requirements of the job she is applying for (financial analyst).
(b) Cases that are proved through circumstantial evidence of the intention to discriminate (see
Schwager v. Sun Oil Co. of Pa., 1979), including those that rely on statistical evidence as a method of
circumstantially proving the intention to discriminate systematically against classes of individuals.
(c) Mixed-motive cases (a hybrid theory) that often rely on both direct evidence of the intention to
discriminate on some impermissible basis (e.g., gender, race, or disability) and proof that the employer’s
stated legitimate basis for its employment decision is just a pretext for illegal discrimination.
Adverse impact (unintentional) discrimination occurs when identical standards or procedures are
applied to everyone, even though they lead to a substantial difference in employment outcomes (e.g.,
selection, promotion, and layoffs) for the members of a particular group and they are unrelated to
success on a job. An example is the use of a minimum height requirement of 5 feet, 8 inches for police
cadets. This requirement would have an adverse impact on Asians, Hispanics, and women. The policy is
neutral on its face, but it has an adverse impact. To use it, an employer would need to show that
applicants must meet the height requirement in order to be able to perform the job.
Legal Framework for Civil Rights Requirements
Employers in the public and private sectors, employment agencies, unions, and joint labor–management
committees controlling apprentice programs are subject to the various nondiscrimination laws.
Government contractors and subcontractors are subject to executive orders. Presidential executive
orders have the force of law even though they are issued unilaterally by the president, without
congressional approval. They can be altered unilaterally as well. Many business organizations are
employers as well as government contractors and, therefore, are directly subject both to
nondiscrimination laws and to executive orders. It is beyond the scope of this chapter to analyze all the
legal requirements pertaining to EEO, but HR professionals should at least understand the major legal
principles as articulated in the following federal laws of broad scope:
The U.S. Constitution—Thirteenth and Fourteenth Amendments
Civil Rights Acts of 1866 and 1871
Equal Pay Act of 1963
Title VII of the Civil Rights Act of 1964 (as amended by the Equal Employment Opportunity Act of
Age Discrimination in Employment Act of 1967 (as amended in 1986)
Immigration Reform and Control Act of 1986
Americans with Disabilities Act of 1990 (as amended in 2008)
Civil Rights Act of 1991
Family and Medical Leave Act of 1993
Uniformed Services Employment and Reemployment Rights Act of 1994
The U.S. Constitution—Thirteenth and Fourteenth Amendments
The Thirteenth Amendment prohibits slavery and involuntary servitude. Any form of discrimination may
be considered an incident of slavery or involuntary servitude, and thus liable to legal action under this
amendment. The Fourteenth Amendment guarantees equal protection of the law for all citizens. Both
the Thirteenth and Fourteenth Amendments granted Congress the constitutional power to enact
legislation to enforce their provisions. It is from this source of constitutional power that all subsequent
civil rights legislation originates.
Civil Rights Acts of 1866 and 1871
These laws were enacted based on the provisions of the Thirteenth and Fourteenth Amendments. The
Civil Rights Act of 1866 grants all citizens the right to make and enforce contracts for employment, and
the Civil Rights Act of 1871 grants all citizens the right to sue in federal court if they feel they have been
deprived of any rights or privileges guaranteed by the Constitution and laws. It applies only to “persons
within the jurisdiction of the United States” and does not extend to discriminatory conduct occurring
overseas (Peikes & Mitchell, 2006).
Until recently, both of these laws were viewed narrowly as tools for Reconstruction-era racial problems.
This is no longer so. In Johnson v. Railway Express Agency (1975), the Supreme Court held that although
Section 1981 of the Civil Rights Act of 1866 on its face relates primarily to racial discrimination in the
making and enforcement of contracts, it also provides a federal remedy against discrimination in private
employment on the basis of race. It is a powerful remedy. The Civil Rights Act of 1991 amended the Civil
Rights Act of 1866 so that workers are protected from intentional discrimination in all aspects of
employment, not just hiring and promotion. The Civil Rights Act of 1866 allows for jury trials and for
compensatory and punitive damages1 for victims of intentional racial and ethnic discrimination, and it
covers both large and small employers, even those with fewer than 15 employees. The Supreme Court
has ruled that employees are permitted to sue for retaliation under this law (Smith, 2008).
1 Punitive damages are awarded in civil cases to punish or deter a defendant’s conduct. They are
separate from compensatory damages, which are intended to reimburse a plaintiff for injuries or harm.
The 1866 law also has been used to broaden the definition of racial discrimination originally applied to
blacks. In a unanimous decision, the Supreme Court ruled in 1987 that race was equated with ethnicity
during the legislative debate after the Civil War, and, therefore, Arabs, Jews, and other ethnic groups
thought of as “white” are not barred from suing under the 1866 law. The Court held that Congress
intended to protect identifiable classes of persons who are subjected to intentional discrimination solely
because of their ancestry or ethnic characteristics. Under the law, therefore, race involves more than
just skin pigment (“Civil Rights Statutes Extended,” 1987).
Equal Pay for Equal Work Regardless of Sex
Equal Pay Act of 1963
This Act was passed as an amendment to the Fair Labor Standards Act (FLSA) of 1938. For those
employers already subject to the FLSA, the Equal Pay Act requires that men and women working for the
same establishment be paid the same rate of pay for work that is substantially equal in skill, effort,
responsibility, and working conditions. Pay differentials are legal and appropriate if they are based on
seniority, merit, systems that measure the quality or quantity of work, or any factor other than sex (e.g.,
shift differentials, completion of a job-related training program).
The Equal Employment Opportunity Commission (EEOC) administers the Equal Pay Act, the first in a
series of federal civil rights laws passed during the 1960s. Wages withheld in violation of its provisions
are viewed as unpaid minimum wages or unpaid overtime compensation under the FLSA. The EEOC
receives about 1,000 equal-pay complaints per year, and, in 2016, it won $8.1 million for aggrieved
individuals, excluding monetary benefits obtained through litigation (EEOC, 2017d). For individual
companies, the price can be quite high, because in correcting any inequity under the act, a company
must ordinarily raise the lower rate. In 2011, for example, Novartis Pharmaceutical Corporation settled a
sex-discrimination lawsuit for $152.5 million (Society for Human Resource Management, 2011).
Equal Pay for Jobs of Comparable Worth
When women dominate an occupational field (such as nursing or secretarial work), the rate of pay for
jobs in that field tends to be lower than the pay that men receive when they are the dominant
incumbents (e.g., in construction or skilled trades). Is the market biased against jobs held mostly by
women? Should jobs dominated by women and jobs dominated by men be paid equally if they are of
“comparable” worth to an employer? Answering the latter question involves the knotty problem of how
to make valid and accurate comparisons of the relative worth of unlike jobs. The key difference between
the Equal Pay Act and the comparable-worth standard is this: The Equal Pay Act requires equal pay for
men and women who do work that is substantially equal. Comparable worth would require equal pay
for work of equal value to an employer (e.g., librarian and electrician).
Here is the crux of the issue: Are women underpaid for their work, or do they merely hold those jobs
that are worth relatively less? Existing federal laws do not support the comparable-worth standard.
However, several states and cities have enacted laws that require a comparable-worth standard for
public employees (Newman, Gerhart, & Milkovich, 2016).
The ultimate resolution of the comparable-worth controversy remains to be seen, but there is an
inescapable irony to the whole episode: The Equal Pay Act was passed for the express purpose of
eliminating gender as a basis for the payment of wages. Comparable worth, by its very nature, requires
that some jobs be labeled “male” and others “female.” In so doing, it makes gender the fundamental
consideration in the payment of wages.
Is it possible that the goals of comparable worth can be accomplished through normal labor-market
processes? Court decisions to date imply that pay differentials between dissimilar jobs will not be
prohibited if the differences can be shown to be based on the content of the work, the value of that
work to organizational objectives, and the employer’s ability to attract and retain employees in
competitive external labor markets (Newman et al., 2016). In short, the appropriate response is to
remove the barriers to equal pay for equal work, not to abolish supply and demand.
Equal Employment Opportunity: Title VII of the Civil Rights Act of 1964
The Civil Rights Act of 1964 is divided into several sections or titles, each dealing with a particular facet
of discrimination (e.g., voting rights, public accommodations, and public education). For our purposes,
Title VII is particularly relevant.
Title VII (as amended by the Equal Employment Opportunity Act of 1972) has been the principal body of
federal legislation in the area of fair employment. It established the Equal Employment Opportunity
Commission to ensure compliance with the law by employers, employment agencies, and labor
organizations. We will consider the organization and operation of the EEOC in greater detail in a later
Nondiscrimination on the Basis of Race, Color, Religion, Sex, or National Origin
Employers are bound by the provisions of Section 703(a) of Title VII as amended, which states:
It shall be an unlawful employment practice for an employer—(1) to fail or to refuse to hire or to
discharge any individual or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because of such individual’s race,
color, religion, sex, or national origin.
Note that race and color are not synonymous. Under federal law discriminating against people because
of the shade of their skin—so-called intra-race or appearance discrimination—is distinct from, but just
as illegal as, racial discrimination. For example, whites can be guilty of color discrimination, but not racial
discrimination, if they favor hiring light-skinned over dark-skinned blacks. This issue is growing in
importance as the sheer number of racial blends increases (EEOC, 2017e).
Retaliation, and Employment Advertising
Title VII, Section 704(a), prohibits discrimination against an employee or applicant because he or she has
opposed an unlawful employment practice or made a charge, testified, assisted, or participated in a Title
VII investigation, proceeding, or hearing. This is retaliation. As defined by the EEOC in 2016: Federal EEO
laws prohibit employers, employment agencies, or unions from punishing applicants or employees for
asserting their rights to be free from employment discrimination, including harassment. Asserting EEO
rights is called “protected activity” (EEOC, 2016b).
Retaliation claims, which account for more than two of every five claims filed with the EEOC, have now
surpassed racial discrimination as the most common type of claim made. According to the EEOC, the
vast majority of retaliation claims generally involve actions such as discharge and suspension (Smith,
Finally, Section 704(b) prohibits notices or advertisements relating to employment from indicating any
preference, limitation, specification, or discrimination on any of the prohibited factors unless it is in
relation to a bona fide occupational qualification (see the “Exemptions to Title VII Coverage” section).
In 1973, the Equal Employment Opportunity Act expanded Title VII’s coverage to public and private
employers (including state and local governments and public and private educational institutions) with
15 or more employees, labor organizations with 15 or more members, and both public and private
employment agencies. These amendments provide broad coverage under Title VII, with the following
exceptions: (a) private clubs, (b) places of employment connected with an Indian reservation, and (c)
religious organizations (which are allowed to discriminate because of religion) (Title VII, Sections 701[a],
702, and 703[i]). The U.S. Office of Personnel Management and the Merit Systems Protection Board,
rather than the EEOC, monitor nondiscrimination and affirmative action programs of the federal
Suspension of Government Contracts and Back-Pay Awards
Two other provisions of the 1973 law are noteworthy. First, denial, termination, or suspension of
government contracts is proscribed (without a special hearing) if an employer has and is following an
affirmative action plan accepted by the federal government for the same facility within the past 12
months. Second, back-pay awards in Title VII cases are limited to two years prior to the filing of a charge.
Thus, if a woman filed a Title VII charge in 2014, but the matter continued through investigation,
conciliation, trial, and appeal until 2018, she might be entitled to as much as six years of back pay, from
2012 (two years prior to the filing of her charge) to 2018 (assuming the matter was resolved in her
Exemptions to Title VII Coverage
In addition to its basic objective of protecting the members of various subgroups against discrimination
in employment, Title VII extends the prohibition against sex discrimination to all aspects of the
employment relationship. At the same time, it contains several specific exemptions (see Figure 2.4),
described in the sections that follow. Initially it appeared that these exemptions would significantly
blunt the overall impact of the law. However, it soon became clear that they would be interpreted very
narrowly both by the EEOC and by the courts.
Bona Fide Occupational Qualifications (BFOQs).
Classification or discrimination in employment according to race, religion, sex, or national origin is
permissible when such qualification is a bona fide occupational qualification “reasonably necessary to
the operation of that particular business or enterprise.” The burden of proof rests with the employer to
demonstrate this, and, as we shall see, the courts interpret BFOQs quite narrowly (Thompson, 2008).
Preferences of the employer, coworkers, or clients are irrelevant, and BFOQ is not a viable defense to a
race claim under Title VII.
Seniority Systems.
Bona fide seniority or merit systems and incentive pay systems are lawful “provided that such
differences are not the result of an intention to discriminate.”
Preemployment Inquiries.
Such inquiries—for example, regarding sex and race—are permissible as long as they are not used as
bases for discrimination. In addition, certain inquiries are necessary to meet the reporting requirements
of the federal regulatory agencies and to ensure compliance with the law. Applicants provide this
information on a voluntary basis.
An employer may give or act on any professionally developed ability test, provided the test is not used
as a vehicle to discriminate on the basis of race, color, religion, sex, or national origin. We will examine
this issue in greater detail in a later section.
Preferential Treatment.
It is unlawful to interpret Title VII as requiring the granting of preferential treatment to individuals or
groups because of their race, color, religion, sex, or national origin on account of existing imbalances.
Such imbalances may exist with respect to differences between the total number or percentage of
similar persons employed by an employer, or admitted to or employed in any training or apprenticeship
program, and the total number or percentage of such persons in any geographic area or in the available
workforce in any geographic area (see Wards Cove Packing v. Antonio, 1989).
In addition, veterans’ preference rights are not repealed or modified in any way by Title VII. In a 1979
ruling (Personnel Administrator of Massachusetts v. Feeney, 1979), the Supreme Court held that
although veterans’ preference rights do have an adverse impact on women’s job opportunities, this is
not caused by an intent to discriminate against women. Both male and female veterans receive the
same preferential treatment, and male nonveterans are at the same disadvantage as female
National Security.
When it is deemed necessary to protect the national security, discrimination (e.g., against members of
the Communist Party) is permitted under Title VII.
Age Discrimination in Employment Act of 1967 (as Amended in 1986)
As amended in 1986, the Age Discrimination in Employment Act (ADEA) specifically proscribes
discrimination on the basis of age for employees age 40 and over unless the employer can demonstrate
that age is a BFOQ for the job in question. For example, if a company claims that layoffs were based on
factors other than age, such as performance criteria or needed skills, the Supreme Court has ruled that
the employer bears the burden of proving that its policy was, in fact, based on those nonage factors
(Winerip, 2013). This law is administered by the EEOC; in 2016 the agency won $88.2 million for
aggrieved individuals, excluding monetary benefits obtained through litigation (EEOC, 2017c).
A key objective of this law is to prevent financially troubled companies from singling out older
employees when there are cutbacks. However, the EEOC has ruled that when there are cutbacks, older
employees can waive their rights to sue under this law (e.g., in return for sweetened benefits for early
retirement). Under the Older Workers Benefit Protection Act, an individual employee who does not
have a pending claim has 21 days to consider such a waiver (45 days if terminated during a group
reduction in force or if leaving voluntarily through a group incentive program), and seven days after
signing to revoke it. On the other hand, courts have made clear that severance agreements will be
upheld against challenges when agreements follow the rules and are written clearly and in a manner
that will enable employees to understand what it is that they are agreeing to (Parsons v. Pioneer Hi-Bred
Int’l Inc., 2006).
Immigration Reform and Control Act of 1986
The Immigration Reform and Control Act of 1986 applies to every employer in the United States—no
matter how small—as well as to every employee—whether full time, part time, temporary, or seasonal.
The act makes the enforcement of national immigration policy the job of every employer. It requires (a)
that employers not hire or continue to employ persons who are not legally authorized to work in the
United States; and (b) that within three days of the hire date employers verify the identity and work
authorization of every new employee, and then sign (under penalty of perjury) a form I-9, attesting that
the employee is lawfully eligible to work in the United States.
Experts advise firms to make copies of whatever documentation they accept for an individual’s
employment, such as a work visa or Social Security card. In addition, to show a good-faith effort to abide
by the law, employers should do a self-audit of all I-9 forms, not just those of a particular ethnic group
(Heathfield, 2017).
Under this law, employers may not discriminate on the basis of national origin, but when two applicants
are equally qualified, an employer may choose a U.S. citizen over a non-U.S. citizen. Penalties for
noncompliance are severe. For example, failure to comply with the verification rules can result in fines
ranging from $100 to $1,000 for each employee whose identity and work authorization have not been
verified. The law also provides for criminal sanctions for employers who engage in a pattern of
In fiscal year 2016, U.S. Immigration and Customs Enforcement (ICE) made 239 criminal arrests related
to 1,279 inspections of I-9 forms. The arrests were primarily of company owners and managers who
knowingly employed illegal workers. According to many legal experts, the single best approach to
reducing illegal employment of workers is mandatory use of E-Verify by all employers. E-Verify is an
Internet-based system that compares information from an applicant’s I-9 form to U.S. Department of
Homeland Security, Social Security Administration, and U.S. Department of State records to confirm that
the applicant is authorized to work in the United States (Morrissey, 2017; U.S. Citizenship & Immigration
Services, 2017).
Americans with Disabilities Act of 1990 (as Amended in 2008)
Almost one in five people in the United States have at least one disability, according to the Centers for
Disease Control and Prevention (Calfas, 2015). At the same time, the employment rate for working-age
people with disabilities is less than half that of those without disabilities (19.1 percent versus 68.5
percent) (Schuman, 2017). Passed to protect people with disabilities from discrimination in
employment, transportation, and public accommodation, the American with Disabilities Act (ADA)
applies to all employers with 15 or more employees.
Provisions of the ADA
As a general rule, the ADA prohibits an employer from discriminating against a “qualified individual with
a disability.” A “qualified individual” is one who is able to perform the “essential” (i.e., primary)
functions of a job with or without accommodation. An employer’s written job description is key to
determining essential functions (Danaher, 2013). The ADA Amendments Act of 2008 prohibits
consideration of mitigating measures in determining whether an individual has a disability, with the
exception of ordinary eyeglasses and contact lenses (Brennan, 2009). A disability is a physical or mental
impairment that substantially limits one or more major life activities, such as walking, talking, seeing,
hearing, or learning. Persons are protected if they currently have an impairment, if they have a record of
such an impairment, or if the employer thinks they have an impairment (e.g., a person with diabetes
under control) (EEOC, 2017f).
Rehabilitated drug and alcohol abusers are protected, but current drug abusers may be fired. The
alcoholic, in contrast, is covered and must be reasonably accommodated by being given a firm choice to
rehabilitate himself or herself or face career-threatening consequences. The law also protects persons
who have tested positive for the AIDS virus (ADA, 1990). At the same time, however, companies don’t
have to lower work standards, tolerate misconduct, or give someone a make-work job (EEOC, 2017f;
Gibson, 2016).
The ADA has five major implications for employers (Janove, 2003; Segal, 2010; Willman, 2003):
Any factory, office, retail store, bank, hotel, or other building open to the public must be made
accessible to those with physical disabilities (e.g., by installing ramps, elevators, telephones with
amplifiers). “Expensive” is no excuse unless such modifications might lead an employer to suffer an
“undue hardship” (Smith, 2016b).
Employers must make “reasonable accommodations” for job applicants or employees with disabilities
(e.g., by restructuring job and training programs, modifying work schedules, or purchasing new
equipment that is “user friendly” to blind or deaf people) (Mook, 2007). Qualified job applicants (i.e.,
individuals with disabilities who can perform the essential functions of a job with or without reasonable
accommodation) must be considered for employment. Practices such as the following may facilitate the
process (Wells, 2008; Zellers, 2009):
Obtain commitment from top management to accommodate workers with disabilities
Partner with public and private disability agencies and community organizations
Centralize recruiting, intake, and monitoring of hiring decisions
Use technology to redesign jobs (For example, Walgreens replaced keyboards with touch screens
based on large pictures and icons, not words, making it easier for people with cognitive disabilities to
learn and complete tasks.)
Develop an orientation process for workers with disabilities, supervisors, and coworkers
Publicize successful accommodation experiences within the organization and among outside
Provide in-service training to all employees and managers about the firm’s “equal-access” policy
and how to distinguish “essential” from “marginal” job functions
Enforcement of the ADA
The EEOC enforces the ADA (EEOC, 2017b). In cases of intentional discrimination, the Supreme Court has
ruled that individuals with disabilities may be awarded both compensatory and punitive damages up to
$300,000 if it can be shown that an employer engaged in discriminatory practices “with malice or with
reckless indifference” (Kolstad v. American Dental Association, 1999).
Civil Rights Act of 1991
The Civil Rights Act of 1991 overturned six Supreme Court decisions issued in 1989. The following
sections describe some key provisions that are likely to have the greatest impact in the context of
Monetary Damages and Jury Trials
A major effect of the Civil Rights Act of 1991 is to expand the remedies in discrimination cases.
Individuals who feel they are the victims of intentional discrimination based on race, gender (including
sexual harassment), religion, or disability can ask for compensatory damages for pain and suffering, as
well as for punitive damages, and they may demand a jury trial. In the past, only plaintiffs in agediscrimination cases had the right to demand a jury.
Compensatory and punitive damages are available only from nonpublic employers (public employers are
still subject to compensatory damages up to $300,000) and not for adverse impact (unintentional
discrimination) cases. Moreover, they may not be awarded in an ADA case when an employer has
engaged in good-faith efforts to provide a reasonable accommodation. The total amount of damages
that can be awarded depends on the size of the employer’s workforce:
More than 500 $300,000
As we noted earlier, victims of intentional discrimination by race or national origin may sue under the
Civil Rights Act of 1866, in which case there are no limits to compensatory and punitive damages. Note
also that since intentional discrimination by reason of disability is a basis for compensatory and punitive
damages (unless the employer makes a good-faith effort to provide reasonable accommodation), the
1991 Civil Rights Act provides the sanctions for violations of the ADA.
Adverse Impact (Unintentional Discrimination) Cases
The Civil Rights Act of 1991 clarifies each party’s obligations in unintentional discrimination cases. As we
noted earlier, when an adverse impact charge is made, the plaintiff must identify a specific employment
practice as the cause of discrimination. If the plaintiff is successful in demonstrating adverse impact, the
burden of producing evidence shifts to the employer, who must prove that the challenged practice is
“job related for the position in question and consistent with business necessity.”
Protection in Foreign Countries
Protection from discrimination in employment, under Title VII of the 1964 Civil Rights Act and the ADA,
is extended to U.S. citizens employed in a foreign facility owned or controlled by a U.S. company.
However, the employer does not have to comply with U.S. discrimination law if to do so would violate
the law of the foreign country. To be covered under this provision, the U.S. citizen must be employed
overseas by a firm controlled by an American employer (Lau, 2008).
Racial Harassment
As we noted earlier, the Civil Rights Act of 1991 amended the Civil Rights Act of 1866 so that workers are
protected from intentional discrimination in all aspects of employment, not just hiring and promotion.
Challenges to Consent Decrees
Once a court order or consent decree is entered to resolve a lawsuit, nonparties to the original suit
cannot challenge such enforcement actions.
Mixed-Motive Cases
In a mixed-motive case, an employment decision was based on a combination of job-related factors, as
well as unlawful factors such as race, gender, religion, or disability. Under the Civil Rights Act of 1991, an
employer is guilty of discrimination if it can be shown that a prohibited consideration was a motivating
factor in a decision, even though other factors that are lawful were also used. In Gross v. FBL Financial
Services Inc. (2009), the Supreme Court ruled that it is not enough for a plaintiff to prove that age was
one of the motivating factors in a decision to terminate the employee. Instead, the plaintiff must prove
that, but for his or her age, the adverse action would not have occurred.
Seniority Systems
The Civil Rights Act of 1991 provides that a seniority system that intentionally discriminates against the
members of a protected group can be challenged within 180 days of any of the following three points:
(1) when the system is adopted, (2) when an individual becomes subject to the system, or (3) when a
person is injured by the system.
Race Norming
The Civil Rights Act of 1991 makes it unlawful “to adjust the scores of, use different cutoff scores for, or
otherwise alter the results of employment-related tests on the basis of race, color, religion, sex, or
national origin.” Prior to the passage of this act, within-group percentile scoring (so-called race norming)
had been used extensively to adjust minority candidates’ test scores to make them more comparable to
those of nonminority candidates. When race norming was used, each individual’s percentile score on a
selection test was computed relative only to others in his or her racial/ethnic group, and not relative to
the scores of all examinees who took the test. However, a merged list of percentile scores (high to low)
was presented to those responsible for hiring decisions.
Extension to U.S. Senate and Appointed Officials
The Civil Rights Act of 1991 extends protection from discrimination on the basis of race, color, religion,
gender, national origin, age, and disability to employees of the U.S. Senate, political appointees of the
president, and staff members employed by elected officials at the state level. Employees of the U.S.
House of Representatives are covered by a House resolution adopted in 1988.
Family and Medical Leave Act of 1993
The Family and Medical Leave Act (FMLA) covers all private-sector employers with 50 or more
employees, including part-timers, who work 1,250 hours over a 12-month period (an average of 25
hours per week). The law gives workers up to 12 weeks of unpaid leave each year for birth, adoption, or
foster care of a child within a year of the child’s arrival; to care for a spouse, parent, or child with a
serious health condition; or for the employee’s own serious health condition if it prevents him or her
from working. The employer is responsible for designating an absence or leave as FMLA leave, on the
basis of information provided by the employee (Rhodes, 2017).
Employers can require workers to provide medical certification of such serious illnesses and can require
a second medical opinion. Employers also can exempt from the FMLA key salaried employees who are
among their highest paid 10 percent. However, employers must maintain health insurance benefits for
leave takers and give them their previous jobs (or comparable positions) when their leaves are over
(McCutchen, 2013). Enforcement provisions of the FMLA are administered by the U.S. Department of
Labor. The overall impact of this law was softened considerably by the exemption of some of its fiercest
opponents—companies with fewer than 50 employees, or 95 percent of all businesses.
The FMLA was amended and expanded to include military families in 2008. Businesses are required to
offer up to 26 weeks of unpaid leave to employees who provide care to wounded U.S. military
personnel. Employers also must provide 12 weeks of FMLA leave to immediate family members
(spouses, children, or parents) of soldiers, reservists, and members of the National Guard who have a
“qualifying exigency.” Although the measure does not define that term, examples could include
overseas assignments, recalls to active duty, and troop mobilizations (Leonard, 2008).
Many employers already offer more than the law requires. In a recent survey, for example, 44 percent of
responding companies said they offer job-protected leave for absences that are not covered under the
law. The most common examples include substituting sick/vacation leave for FMLA leave, allowing more
than 12 weeks for job-protected leave, and offering such leaves for employees with fewer than 12
months’ service (Society for Human Resource Management, 2007).
Uniformed Services Employment and Reemployment Rights Act of 1994
Regardless of its size, an employer may not deny a person initial employment, reemployment,
promotion, or benefits based on that person’s membership or potential membership in the uniformed
services. The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires both
public and private employers promptly to reemploy individuals returning from uniformed service (e.g.,
National Guard or activated reservists) in the position they would have occupied and with the seniority
rights they would have enjoyed had they never left. Employers are also required to maintain health
benefits for employees while they are away, but they are not required to make up the often-significant
difference between military and civilian pay (Smith, 2017a; Thelen, 2006).
To be protected, the employee must provide advance notice. Employers need not always rehire a
returning service member (e.g., if the employee received a dishonorable discharge or if changed
circumstances at the workplace, such as bankruptcy or layoffs, make reemployment impossible or
unreasonable), but the burden of proof will almost always be on the employer. The Veterans’
Employment and Training Service of the U.S. Department of Labor administers this law (Kee, 2014).
Enforcement of the Laws—Regulatory Agencies
State Fair Employment Practices Agencies
Most states have nondiscrimination laws that include provisions expressing the public policy of the
state, the persons to whom the law applies, and the prescribed activities of various administrative
bodies. Moreover, the provisions specify unfair employment practices, procedures, and enforcement
powers. Many states vest statutory enforcement powers in a state fair employment practices agency
Equal Employment Opportunity Commission
The Equal Employment Opportunity Commission is an independent regulatory agency whose five
commissioners (one of whom is the chair) are appointed by the president and confirmed by the Senate
for terms of five years. No more than three of the commissioners may be from the same political party.
Like the Office of Federal Contract Compliance Programs (OFCCP), the EEOC sets policy and in individual
cases determines whether there is “reasonable cause” to believe that unlawful discrimination has
occurred. It should be noted, however, that the courts give no legal standing to EEOC rulings on whether
or not “reasonable cause” exists; each Title VII case constitutes a new proceeding.
The EEOC is the major regulatory agency charged with enforcing federal civil rights laws, and it is a busy
one. In 2016, for example, individuals filed 91,503 complaints with the agency. It resolved 97,443 of
them (some were from prior years) and secured more than $482 million for victims of unfair
discrimination (EEOC, 2017a). Claims of retaliation by employers against workers who have complained
of discrimination comprise the largest percentage of complaints (45.9 percent), followed by race (35.3
percent), disability (30.7 percent), sex (29.4 percent), and age (22.8 percent). These percentages add up
to more than 100 because some charges allege multiple bases.
The Complaint Process
Complaints filed with the EEOC first are deferred to a state or local FEPA if there is one with statutory
enforcement power. After 60 days, the EEOC can begin its own investigation of the charges, whether or
not the state agency takes action. Of course, the state or local agency may immediately re-defer to the
The EEOC follows a three-step approach to resolving complaints: investigation, conciliation, and
litigation. Throughout the process, the commission encourages the parties to settle and to consider
mediation. Although the percentage of employers agreeing to mediate is considerably lower than the
percentage of charging parties agreeing to mediate, in 2016 the EEOC conducted 15,800 successful
mediations, securing more than $20.3 million in remedies (EEOC, 2016c). If conciliation efforts fail, court
action can be taken. If the defendant is a private employer, the case is filed with the appropriate federal
district court; if the defendant is a public employer, the case is referred to the Department of Justice.
In addition to processing complaints, the EEOC is responsible for issuing written regulations governing
compliance with federal workplace discrimination laws. Among those issued are guidelines on
discrimination because of pregnancy, age, sex, religion, national origin (updated in 2016), and pay;
retaliation; guidelines on employee selection procedures (in concert with three other federal agencies—
see Appendix A); guidelines on affirmative action programs; and a policy statement on preemployment
inquiries. These guidelines are not laws, although the Supreme Court indicated in Albemarle Paper Co. v.
Moody (1975) that they are entitled to “great deference.” Although the purposes of the guidelines are
more legal than scientific, violations will incur EEOC sanctions and possible court action.
The EEOC has one other major function: information gathering. Each organization with 100 or more
employees must file annually with the EEOC an EEO-1 form, detailing the number of women and
members of four different minority groups employed in nine different job categories from laborers to
managers and officials. The specific minority groups tracked are African Americans; Americans of Cuban,
Spanish, Puerto Rican, or Mexican origin; Asian Americans; and Native Americans (which in Alaska
includes Eskimos and Aleuts). Through computerized analysis of EEO-1 forms, the EEOC is better able to
uncover broad patterns of discrimination and to attack them through class-action suits.
Office of Federal Contract Compliance Programs
The Office of Federal Contract Compliance Programs is part of the U.S. Department of Labor. It is
responsible for ensuring that the approximately 200,000 federal contractor employers doing business
with the federal government comply with the laws and regulations requiring nondiscrimination. This
mission is based on the underlying principle that employment opportunities generated by federal dollars
should be available to all Americans on an equitable and fair basis. “Contract compliance” means that in
addition to meeting the quality, timeliness, and other requirements of federal contract work,
contractors and subcontractors must satisfy EEO and affirmative action requirements covering all
aspects of employment, including recruitment, hiring, training, pay, seniority, promotion, and even
benefits. Those with more than $50,000 in government business and with 50 or more employees must
prepare and implement written affirmative action plans (U.S. Department of Labor, 2014).
Goals and Timetables
Whenever job categories include fewer women or minorities “than would reasonably be expected by
their availability,” the contractor must establish goals and timetables (subject to OFCCP review) for
increasing their representation. Goals are distinguishable from quotas in that quotas are inflexible,
whereas goals are flexible objectives that can be met in a realistic amount of time. In determining
representation rates, OFCCP suggests that contractors use eight criteria, including the population of
women and minorities in the labor area surrounding the facility, the general availability of women and
minorities having the requisite skills in the immediate labor area or in an area in which the contractor
can reasonably recruit, and the degree of training the contractor is reasonably able to undertake as a
means of making all job classes available to women and minorities.
How has the agency done? In 2016, the OFCCP conducted 1,391 compliance reviews and recovered
roughly $6 million in back pay and other costs for employees. The number of companies debarred varies
each year, from none to about eight (Beecher, 2016; Maurer, 2016e).
Employment Case Law—General Principles
Whereas the legislative and executive branches may write laws and provide for their enforcement, it is
the responsibility of the judicial branch to interpret the laws and to determine how they will be
enforced. Since judicial interpretation is fundamentally a matter of legal judgment, this area is changing
constantly. Of necessity, laws must be written in general rather than specific form, and, therefore, they
cannot possibly cover the contingencies of each particular case. Moreover, in any large body of law,
conflicts and inconsistencies will exist as a matter of course. Finally, new scientific findings must be
considered along with the letter of the law if justice is to be served.
Legal interpretations define what is called case law, which serves as a precedent to guide, but not
completely to determine, future legal decisions. A considerable body of case law pertinent to
employment relationships has developed. The intent of this section is not to document all of it, but
merely to highlight significant developments in certain areas.
The 1964 Civil Rights Act clearly sanctions the use of “professionally developed” ability tests, but it took
several landmark Supreme Court cases to spell out the proper role and use of tests. The first of these
was Griggs v. Duke Power Company, decided in March 1971 in favor of Griggs.
Duke Power was prohibited from requiring a high school education or the passing of an intelligence test
as a condition of employment or job transfer because it could not show that either standard was
significantly related to job performance:
What Congress has forbidden is giving these devices and mechanisms controlling force unless they are
demonstrably a reasonable measure of job performance. … What Congress has commanded is that any
tests used must measure the person for the job and not the person in the abstract. (p. 428)
The ruling also included four other general principles:
The law prohibits not only open and deliberate discrimination but also practices that are fair in form
but discriminatory in operation. That is, Title VII prohibits practices having an adverse impact on
protected groups, unless they are job related. This is a landmark pronouncement because it officially
established adverse impact as a category of illegal discrimination. For example, suppose an organization
wants to use prior arrests as a basis for selection. In theory, arrests are a “neutral” practice because all
persons are equally subject to arrest if they violate the law. However, if arrests cannot be shown to be
job related, and if a significantly higher proportion of, say, African Americans than whites are arrested,
then the use of arrests as a basis for selection is discriminatory in operation.
The employer bears the burden of proof that any requirement for employment is related to job
performance. As affirmed by the Civil Rights Act of 1991, when a charge of adverse impact is made, the
plaintiff must identify a specific employment practice as the cause of the discrimination. If the plaintiff is
successful, the burden shifts to the employer.
It is not necessary for the plaintiff to prove that the discrimination was intentional; intent is irrelevant.
If the standards result in discrimination, they are unlawful.
Job-related tests and other employment selection procedures are legal and useful.
As is well known, interviews are commonly used as bases for employment decisions to hire or to
promote certain candidates in preference over others. Must such “subjective” assessment procedures
satisfy the same standards of job relatedness as more “objective” procedures, such as written tests? If
they produce an adverse impact against a protected group, the answer is yes, according to the Supreme
Court in Watson v. Fort Worth Bank & Trust (1988).
As in its Griggs ruling, the Court held that it is not necessary for the plaintiff to prove that the
discrimination was intentional. If the interview ratings result in adverse impact, they are presumed to be
unlawful, unless the employer can show some relationship between the content of the ratings and the
requirements of a given job. This need not involve a formal validation study, although the Court agreed
unanimously that it is possible to conduct such studies when subjective assessment devices are used
(McPhail, 2007; Schmitt, Arnold, & Nieminen, 2017).
The lesson for employers? Be sure that there is a legitimate, job-related reason for every question raised
in an employment or promotional interview. Limit questioning to “need to know,” rather than “nice to
know,” information, and monitor interview outcomes for adverse impact. Validate this selection
method. It is unwise to wait until the selection system is challenged.
In two later rulings, Albemarle Paper Co. v. Moody (1975) and Washington v. Davis (1976), the Supreme
Court specified in much greater detail what “job relevance” means: adequate job analysis; relevant,
reliable, and unbiased job performance measures; and evidence that the tests used forecast job
performance equally well for minorities and nonminorities.
To this point, we have assumed that any tests used are job related. But suppose that a written test used
as the first hurdle in a selection program is not job related and that it produces an adverse impact
against African Americans. Adverse impact refers to a substantially different rate of selection in hiring,
promotion, or other employment decisions that works to the disadvantage of members of a race, sex, or
ethnic group. Suppose further that among those who pass the test, proportionately more African
Americans than whites are hired, so that the “bottom line” of hires indicates no adverse impact. This
thorny issue faced the Supreme Court in Connecticut v. Teal (1982).
The Court ruled that Title VII provides rights to individuals, not to groups. Thus, it is no defense to
discriminate unfairly against certain individuals (e.g., African American applicants) and then to “make
up” for such treatment by treating other members of the same group favorably (i.e., African Americans
who passed the test). In other words, it is no defense to argue that the bottom line indicates no adverse
impact if intermediate steps in the hiring or promotion process do produce adverse impact and are not
job related.
Decades of research have established that when a job requires cognitive ability, as virtually all jobs do,
and tests are used to measures it, employers should expect to observe statistically significant
differences in average test scores across racial/ethnic subgroups on standardized measures of
knowledge, skill, ability, and achievement (Ones, Dilchert, Viswesvaran, & Salgado, 2017; Pyburn,
Ployhart, & Kravitz, 2008). Alternatives to traditional tests tend to produce equivalent subgroup
differences when the alternatives measure job-relevant constructs that require cognitive ability. What
can be done? Begin by identifying clearly the kind of performance one is hoping to predict, and then
measure the full range of performance goals and organizational interests, each weighted according to its
relevance to the job in question (Aiken & Hanges, 2017b; De Corte, Lievens, & Sackett, 2007; Sackett, De
Corte, & Lievens, 2010). That domain may include abilities, as well as personality characteristics,
measures of motivation, and documented experience (Cascio, Jacobs, & Silva, 2010; Cleveland, Murphy,
& Colella, 2017; Ployhart & Holtz, 2008). Chapter 8 provides a more detailed discussion of the remedies
available. The end result may well be a reduction in subgroup differences.
Personal History
Frequently, qualification requirements involve personal background information or employment history,
which may include minimum education or experience requirements, past wage garnishments, or
previous arrest and conviction records. If such requirements have the effect of denying or restricting
equal employment opportunity, they may violate Title VII.
This is not to imply that organizations should avoid considering education or experience requirements
(Moyer, 2009). On the contrary, a review of 83 court cases indicated that educational requirements are
most likely to be upheld when (a) a highly technical job, one that involves risk to the safety of the public,
or one that requires advanced knowledge is at issue; (b) adverse impact cannot be established; and (c)
evidence of criterion-related validity or an effective affirmative action program is offered as a defense
(Meritt-Haston & Wexley, 1983).
Similar findings were reported in a review of 45 cases dealing with experience requirements (Arvey &
McGowen, 1982). That is, experience requirements typically are upheld for jobs when there are greater
economic and human risks involved with failure to perform adequately (e.g., airline pilots) or for higher
level jobs that are more complex. They typically are not upheld when they perpetuate a racial imbalance
or past discrimination or when they are applied differently to different groups. Courts also tend to
review experience requirements carefully for evidence of business necessity.
Arrest records, by their very nature, are not valid bases for screening candidates because in our society a
person who is arrested is presumed innocent until proven guilty. It might, therefore, appear that
conviction records are always permissible bases for applicant screening. In fact, conviction records may
not be used in evaluating applicants unless the conviction is directly related to the work to be
performed—for example, when a person convicted of embezzlement applies for a job as a bank teller
(cf. Hyland v. Fukuda, 1978). In addition, employers should consider carefully the nature and gravity of
the offense, the time that has passed since the conviction and/or completion of the sentence, and
whether the candidate is a repeat offender (Maurer, 2015a).
As of 2017, 24 states and more than 150 cities and counties have passed “ban the box” laws that require
organizations to remove the check box that asks if a candidate has ever been convicted of a crime.
Instead, they require employers first to conduct a job interview to see if someone is qualified, and then
do a background investigation and analysis of whether a conviction is job related (Nagele-Piazza, 2017).
Despite such constraints, remember that personal history items are not unlawfully discriminatory per se,
but to use them, an employer must show that they are relevant to the job in question. Just as with
employment interviews, collect this information on a “need to know,” not on a “nice to know,” basis.
Sex Discrimination
Judicial interpretation of Title VII clearly indicates that in the United States both sexes must be given
equal opportunity to compete for jobs unless it can be demonstrated that sex is a bona fide
occupational qualification for the job (e.g., actor, actress). Sex-discrimination cases have been argued
under both theories of unlawful discrimination: disparate treatment (e.g., sexual harassment) as well as
adverse impact (e.g., physical ability tests). Many cases involve allegations of gender stereotyping
(unwitting preferences by managers) (Randazzo, 2016; Smith, 2011). Gender stereotypes are not a thing
of the past, and they will play important roles in future employment-law litigation.
What about sexual orientation? There is no federal law that specifically prohibits workplace
discrimination on the basis of sexual orientation in the private sector, although federal government
workers are protected from such discrimination. The EEOC has taken the position that sexualorientation discrimination is necessarily a form of sex discrimination because it involves gender-based
stereotypes of how men and women should behave and with whom they should be in romantic
relationships (EEOC, 2017h). The Justice Department has argued the opposite, declaring that sex
discrimination does not encompass bias based only on sexual orientation (Feuer, 2017). Federal appeals
courts have issued contradictory rulings on this issue (Shivers, 2017; Smith, 2017b). Many state, county,
and local laws already prohibit discrimination in private and public employment on the basis of sexual
orientation, as well as on the basis of gender identity and gender expression. Ultimately the Supreme
Court may have to determine if Title…
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