Disparate treatment is whereby an employer, under Title VII, is prohibited from discriminating employees or job applicants based on their membership in a protected class. Should an employer be found guilty of such kind of discrimination, the plaintiff can offer circumstantial or direct evidence that proves this.
The plaintiff may offer direct evidence in cases where the employer openly admits to discriminating against them based on their origin. However, not many employers can openly admit to discriminating against their employees or job applicants and this makes it difficult to prove.
The plaintiff may also offer circumstantial evidence based on three criterions. The first criteria is whereby the plaintiff has solid evidence that shows the employer made comments whether oral or written, that was directed towards employees of the protected class.
The second criteria is whereby the employer openly shows preferential treatment of employees that he/she doesn’t discriminate against and lastly, the third criteria is whereby the job applicant or employee shows evidence that they were qualified for the job but a person who wasn’t in the protected class group got the job (“EEO, Disparate Treatment”, 1999).
The bona fide occupational qualification is a quality that employers look for when hiring employees in their company. These qualifications when look at in another context may be deemed as being discriminatory and are thus considered to be a violation of the civil rights employment law.
These qualifications may include mandatory requirements such as retirement ages for bus drivers and airline pilots for safety purposes. Others include: a manufacturer of male clothes advertising for male models, subscribing to a certain religious belief in order to be considered for a certain position, etc.
However, these qualifications are only deemed necessary and legal if they are required for efficient running of the institution or the company. For instance, some positions such as chaplain or teaching faculty in a catholic college may require the employees to be Catholics.
Membership or applying to the college should not therefore require one to be a Catholic. Lack of customer satisfaction should not be a criterion for justifying a BFOQ defense. For instance, if customers prefer female flight attendants that doesn’t make it okay to hire only female personnel to the position (Ford, Notestine & Hill, 2000).
The four fifths rule is the simplest and most widely used way of estimating or determining adverse impact. It can be computed in four different ways. The first step is done by calculating the selection rate for each protected group which totals to more than 2% of the applicant pool. If one divides the total number of applicants within the group that is hired by the total number of applicants within the group, they would be able to calculate the selection rate.
The second step is observing which group has the highest selection rate. Thirdly, one can calculate the impact ratio by taking the selection rate for each group and dividing it by the selection rate of the group with the highest selection rate. Lastly, it is important to note if the selection rates are substantially different as a score of less than 8 shows that there is a violation of the civil rights and employment act.
There are certain types of questions that employers are advised not to ask during an interview. Such questions include age. Under no circumstances should employers ask job applicants their age. The employment act allows this question to be asked only when the job involves serving of alcohol which requires a minimum age of 21 years or if the job requires the employee to be over 18 years.
Citizenship of the job applicant should also not be asked unless the employer wants to establish if the applicant is authorized to work in that country. This is a better alternative to asking whether the applicant is an illegal immigrant. Once the applicant is hired, the employer can fill out an employment eligibility verification document.
Inquiring about an applicant’s marital status is also not appropriate and neither is inquiring about their mental or physical disabilities. It is also not advised that the employer ask about the applicant’s health status. This may include inquiring about their addictions whether it’s cocaine, alcohol or any other drug.
This may be looked at as a criterion for discrimination on the part of the employer. An employer is also required to accommodate an employee’s religious beliefs by including flexible hours and allowing a flexible dress code that is required by one’s religion. Other questions that the employer shouldn’t ask include the applicant’s race or ethnic origin.
Employers should be able to ask questions that define the qualities and characteristics of potential employees and basic aptitude tests. One can develop a list of interview questions that identify characteristics such as good communication skills, strong work ethics, integrity and honesty among other desirable characteristics.
Questions should be carefully phrased so as not to be illegal. For example an employer can ask if the applicant is authorized to work in that particular country instead of asking if they are illegal immigrants or asking about their citizenship.
When faced with illegal interview questions, the applicant may choose to request the employer to change the illegal job application process or to change the interview process. Alternatively, if the applicant wants to get the job they may decide to answer the questions in a non-confrontational manner. The applicant may also choose to take up the matter with the appropriate authorities by taking the job application form to them and filling for a complaint.
References
EEO: Disparate Treatment (1999). Retrieved from www.hr-guide.com/data/G701.htm
Ford, E. K, Notestine, E. K, & Hill, N. R. (2000). Fundamentals of Employment Law. ABA Publishing.