This document outlines employment law basics for recruiters, focusing on discrimination laws and the legal responsibilities of recruiting companies. It discusses the importance of understanding the employment law environment, documenting hiring processes, and minimizing legal risks while promoting diversity. The text also highlights the nuances of discrimination claims, including proving and defending against them, as well as considerations for addressing reverse discrimination.

1. Employment Law Basics for Recruiters © George L. Lenard, 2008

2. Overview Some Ground Rules Discrimination Laws & How Recruiters Come Within Them How Discrimination Claims Are Proven & Defended How to Protect Yourself Against Claims Diversity and Reverse Discrimination Issues

3. I. Ground Rules Photo: mwlguide

4. First, Understand The Employment Law Environment

5. Second, Understand the Psychosocial Environment

6. Harvard Implicit Association Test http://implicit.harvard.edu

7. Third, Know Enough Law to Know When to Call a Lawyer

8. Fourth, Be Aware of Worrisome Legal Trends Hiring litigation is up So are race charges Class actions are popular Huge settlements are common Lawyers make millions EEOC watches recruiters

9. Fifth, Know That You Can Both Reduce Legal Risk and Hire the Best

10. Sixth, Remember That It Takes Just One Upset Candidate to Cause a Costly Legal Problem “ What do you mean I’m not qualified ?!!”

11. Finally, Be Aware Recruiter May Be Viewed as “Gatekeeper”

12. II. Discrimination Laws & How Recruiters Come Within Them

13. Federal & State Discrimination Laws Race Color Religion Sex Pregnancy National Origin Age (40 or older) Disability Sexual Orientation (not federal yet) Retaliation

14. Other Laws To Be Aware Of Immigration Independent contractor status Fair Labor Standards Act (minimum wage and overtime)

16. Recruiting Companies Can Be Liable As “Employers” A recruiting company is an "employer" under Title VII if it has enough of own employees: 15 or more employees. Independent contractors don't count. But be very cautious about concluding recruiters are independent contractors. Photo: laurenatclemson

17. Recruiting Companies Can Be Liable As “Agents” of Employers Definition of "employer" includes "any agent" of an employer. Generally, an agent is someone “authorized to act on behalf of and under the control of another in dealing with third parties.”

18. Employment Agency Actions Discrimination Laws Prohibit Discriminatory failure or refusal to refer for employment, or other discrimination against any individual because of a protected characteristic.

19. Employer Actions Discrimination Laws Prohibit Because of individual’s protected characteristic (race, color, religion, etc.): Failing or refusing to hire Discharging Otherwise discriminating in compensation, terms, conditions, or privileges of employment Limiting, segregating, or classifying employees or applicants so as to deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect their status as an employee

20. Other Employer Actions Discrimination Laws Prohibit Harassment based on any protected characteristic. Failure to reasonably accommodate disability.

21. Recruiting Companies Can Also Be Liable As "Employment Agencies" Discrimination law defines “employment agency" as: “Any person regularly undertaking with or without compensation to procure employees for an employer.”

23. Customer Preference Cannot Justify Discrimination

24. III. How Discrimination Claims Are Proven & Defended Two Main Approaches to Proving Discrimination: Disparate treatment is the most common way to prove individual claims of discrimination. Disparate impact often is used in the major class actions.

25. Disparate Treatment Three Step Test 1. Prima facie case of race discrimination in hiring requires proof the person belongs to racial minority, applied and was qualified for open position, and was rejected. 2. If prima facie case proven, court considers whether legitimate, nondiscriminatory reason for rejection has been given. 3. Finally, court determines whether this was not the true reason, but was a pretext, or lie, to cover up discrimination.

26. Disparate Impact Need not be intent to discriminate. If employment practice has disparate impact, burden is on employer to prove it is “job related for the position in question and consistent with business necessity.”

28. IV. How to Protect Yourself Against Claims Photo: James Gordon

29. Have & Document Good Reasons Keep records of all your work. Follow accepted document retention policies. Be in a position to explain why you did what you did, especially screening anyone out after you expressed some interest.

30. Work From Accurate Job Descriptions Should be sourcing, screening, and interviewing roadmap. Can either help or hurt; make sure they help! Physical requirements are important for disability claims.

31. Take Great Care In Composing Advertisements

32. Broaden Your Searches Viewing hiring process as a whole, the starting point – the “applicant pool” -- is very important. The EEOC is suspicious of “word-of-mouth” or employee referral hiring.

33. Avoid Improper Interview Questions Not necessarily illegal to ask, but may be – and may be used as evidence of illegal intentions. If irrelevant and tend to evoke facts that could be used to discriminate, why else would you ask? If not asked of all applicants, but only women, for example, can show discrimination.

34. Learn the Rules About Disability-Related Inquiries http://eeoc.gov/policy/docs/guidance-inquiries.html

35. Assess Impact of Screening Criteria, Tests and Qualifications Be aware of diversity of your applicant flow – or lack of it. If tests are used, they either must have no disparate impact or be professionally validated for the job.

36. Too Much Information Can Be Bad!

37. V. Diversity and Reverse Discrimination Issues

38. Reverse Discrimination Are only minorities protected by discrimination laws? Can a white man claim race and/or sex discrimination?

39. Diversity Programs

41. George Lenard Harris Dowell Fisher & Harris 15400 South Outer Hwy. Forty, Suite 202 Chesterfield (St. Louis), MO 63107 636-532-0300 www.hdfh.com [email_address] George’s Employment Blawg www.employmentblawg.com