On April 23, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance concerning the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act and how employers may respond to the public health emergency caused by COVID-19. The EEOC makes clear that while the laws will continue to apply during the present public health emergency,
There are numerous signals that the U.S. economy is recovering – unemployment numbers are improving in California and elsewhere, there are mixed indications of a brighter housing market, and the stock market over the last months has improved substantially. The overall mood may have also turned a corner, with less news of economically motivated protests, or of waves of foreclosures, and more talk of IPO’s and new business ventures.
For some California public sector employers, a brighter outlook is corresponding with more hiring. Although this is good news, the hiring process does carry legal risks, just as did downsizing and other like matters in bad economic times.
Here are six areas of the hiring process in the public sector that deserve particular attention from a legal perspective. This is not an exhaustive list of such areas, or a complete list of considerations, but it provides a general framework for what to trouble-shoot before hiring begins in earnest.
1. Utilize Accurate Job Descriptions: At the very outset of the hiring process, it is critical to develop accurate and sufficiently detailed job descriptions. These will prove important not only for hiring, but also for legal issues that may arise later during the course of the employment relationship. An accurate job description will help the agency demonstrate that questions on job applications and during interviews are legitimate and non-discriminatory, and help those in the hiring process focus on eliciting those facts that are job-related. Also, in the context of disability discrimination laws, in both the hiring process and during employment, an agency’s identification of the “essential functions of the job” will be critical. Under both federal and state law, a Court will treat the job description prepared by the employer prior to advertising or interviewing for the job as evidence of what are essential functions.
Detail in the job description can be very important also, because vague or overly general job descriptions can fail to give proper guidance either to applicants deciding whether to seek the job, or to agency personnel making the hiring decisions. Misunderstanding about the nature of the job can produce charges of discrimination or of failure to accommodate. At a minimum, a job description should contain: (a) job-related educational requirements, (b) necessary vocational skills, (c) required work experience, (d) examples of duties, (e) unusual physical requirements, (f) work hours, and (g) compensation. Where possible, job requirements should be validated by experts using professionally accepted validation methods.
2. Establish a Uniform Screening Process for Applications: The next phase to consider is the initial “screen” of applications for those who are not qualified or not competitive in light of the quality and experience of other applicants. As a general matter, an employer’s initial “screen” must be conducted in a neutral manner that does not result in an unjustifiable, disproportionate impact with regard to a protected characteristic, e.g. race, gender, religion, age over 40, etc. Accordingly, the agency should establish a set of job-related screening criteria which do not result in exclusion of individuals who are qualified and competitive for the job. The agency should also have a process in place to make a separate review of the fairness and appropriateness of screening criteria, to make sure the screening guidelines are followed, and to confirm that decisions were not influenced by improper considerations.
3. Focus Interviews on Job-Related Questions, and Avoid Improper Questions: Like other aspects of the hiring process, interviews must be non-discriminatory. Questions should focus on qualifications for the job in question, and not pertain to protected characteristics. The California Department of Fair Employment and Housing has promulgated a list of questions that cannot be asked in an interview. Some unlawful questions are straightforward, such as asking about an applicant’s race, age, religion, or other protected characteristics. But the list also encompasses some questions that bear indirectly on these matters, such as questions about the date of completion of school, religious days the applicant observes, or the applicant’s birthplace. (The list of questions is available at: http://www.dfeh.ca.gov/res/docs/publications/dfeh-161.pdf.) The FEHA publication lists how questions can be phrased in a way that requests information the employer legitimately needs without creating an impression of bias. (For example, it would be appropriate to ask which languages an applicant speaks, if relevant to the job at issue.)
It is vital that agencies ensure that those employees conducting interviews have received training in what are protected classifications, and what questions are prohibited – and of course those conducting interviews should have become thoroughly familiar with the job description and nature of the job in question.