Employment Process Manual, Legal Issues and Government Regulations
Several federal laws affect the employer-employee relationship and extend to pre-employment activities such as recruitment and selection. These laws include:
- Civil Rights Act of 1964
- Age Discrimination in Employment Act of 1967 (ADEA)
- Pregnancy Discrimination Act of 1978
- Americans with Disabilities Act of 1990 (ADA)
- Civil Rights Act of 1991 - Title VII
The laws collectively prohibit making employment decisions adverse to an individual using any one of the following criteria as basis for the decision:
- National origin
- Age 40 or older
- Disability of a qualified individual
Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. The act requires employers to compile and keep records that can be used to determine whether unlawful employment practices have occurred. An amendment to the act prohibits discrimination against pregnant women. Pregnant women must be evaluated on their ability to perform a job not on their medical condition.
The Age Discrimination in Employment Act (1967), as amended, protects persons age 40 and older and prohibits discrimination in employment on the basis of age. Rare exceptions may exist if an employer can prove that requiring an employee to be within a certain age group in a bona fide occupational qualification (BFOQ). Such exceptions are difficult to justify and questions regarding such should be directed to the Human Resources Office. Casual remarks such as "the college needs employees with fresh ideas" or "we need new blood" may be interpreted as discriminatory against older workers.
Pregnancy Discrimination Act of 1978 amended the Civil Rights Act of 1964 by stating that pregnancy is a disability and that pregnant employees must be treated on an equal basis with employees having other medical conditions. Under the law, it's illegal for employers to deny sick leave for morning sickness or related pregnancy illness if sick leave is permitted for other medical conditions such as flu or surgical procedures.
The Americans with Disabilities Act of 1990 protects people who have a record of mental or physical impairments or who are regarded as having such disabilities. One objective of the ADA is to ensure that people who are otherwise able to perform the essential duties of a job are not shut out or overlooked because of their actual or perceived disabilities. The ADA defines a "qualified individual with a disability" as a person who has a physical or mental impairment which substantially limits a major life activity but can perform the essential tasks of a particular job. Major life activities include seeing, hearing, walking, caring for one's self, learning, breathing, and working. Essential tasks are those tasks which must be performed by the jobholder with or without reasonable accommodation. For example, it may be essential for a cafeteria cashier to operate a cash register on a regular basis. However, it may not be essential for that worker to stand to perform the task and it may not be essential for that worker to periodically hang signs advertising new menu items. The worker may be able to operate the cash register while sitting and another worker may be given the task of hanging the occasional sign.
Civil Rights Act of 1991 - Title VII amends the Civil Rights Act of 1964 by awarding damages in cases of intentional discrimination or unlawful harassment. The Act allows juries rather than federal judges to decide discrimination claims.
Most states also have laws which affect employment. Florida laws are similar to the federal laws. Florida law stipulates that marital status, in addition to the criteria listed above, not be used as a basis for an employment decision. Also, Florida statute mandates that preference be given in appointment and retention in public employment to veterans of active duty who are Florida residents and who have served in a campaign or expedition for which a campaign badge has been authorized. Active duty for training is not allowed for eligibility. (FS 295.07 (1) Rev. 5-23-03). This statute applies to Administrative, Professional, Technical, Staff/Office Support, and Career Service positions at Seminole State College. Veterans who apply for such positions will be given preference at each step of the selection process.
We should follow some general guidelines:
- Be sure that all questions asked during the screening and interviewing process are job related
- Take special care when developing pre-employment tests and demonstrations to ensure that these requirements represent job related tasks and measure the applicant's ability to perform the essential functions of the job.
- Be sure that an applicant is not prevented from applying for a job, participating in an interview or completing a test or demonstration due to his/her disability.
- Make a reasonable attempt to accommodate a qualified individual with known physical or mental limitations.