PITFALLS OF SETTING MINIMUM
QUALIFICATIONS
Kristine E. Kwong, Esq.
[email protected]
JOB DESCRIPTION
 Purpose of a Job Description
 Communication of Duties
 Sets Expectations of Work
 Aids Employer in Recruitment
 Informs Employee of Duties
JOB DESCRIPTION
 Key Elements
 Essential Duties
 Physical and/or Certification Requirements
 Education
 Compensation
JOB DESCRIPTION
 Qualifications for Position
 Physical
 Educational
 Skill-based
 Combination of the above
JOB DESCRIPTION
 Minimum Qualifications
 Lowest Threshold to be Considered for Candidacy
 Used as a Tool to Filter Out Applicants Not Capable of
Performing the Essential Job Functions
JOB DESCRIPTIONS COLLIDING WITH
THE LAW
 Title VII of the 1964 Civil Rights Act
 California Fair Employment & Housing Act
 Prohibits Unlawful Employment Practices
 Failing or Refusing to Hire
 Discharging
 Discriminating with Respect to Compensation, Terms,
Conditions or Privileges of Employment
 Failure to Promote
UNLAWFUL EMPLOYMENT PRACTICES
 Race
 Color
 Religion
 National Origin
 Sex
 Sexual Orientation
 Sexual Identity
 Age
WAYS OF PROVING DISCRIMINATION
 Direct Evidence
 Indirect Evidence
 Disparate Impact
WAYS OF PROVING DISCRIMINATION
 Direct Evidence
 Discriminatory Intent
 Adverse Employment Action
 Indirect Evidence
 No Smoking Gun Evidence
DISPARATE IMPACT THEORY
 What is the Disparate Impact Theory?
 Facially Neutral Employment Practice Deemed Discriminatory
Without Evidence of the Employer’s Subjective Intent to
Discriminate
 Discriminatory Intent is Not Required
 Intent to Avoid Disparate Impact is Viewed as the Intent to
Discriminate
 Disregarding the Results of a Valid Job Selection Process (i.e., Performance
Tests) for Failure to Yield a Racially Diverse Group of Candidates is Intentional
Discrimination Against the Successful Candidates Based on Their Race
 May Disregard If You Can Show That the Test Was Deficient and That
Discarding the Results is Needed To Avoid Violating Disparate Impact
Provision
DISPARATE IMPACT THEORY
 Subjective Employment Criteria (i.e., Personality)
 Objective or Standardized Tests
DISPARATE IMPACT THEORY
• Examples of Objective Criteria that May Have
Discriminatory Impact:
• Written Aptitude Tests
• Written Tests of Verbal Skills
• Height and Weight Requirements
• Rules Against Employing Drug Addicts
DISPARATE IMPACT THEORY
 Examples of Subjective Criteria That May Have
Discriminatory Impact:
 Hiring Decisions Based on Personal Knowledge of Candidates or
Recommendations
 Decision to Fire Individuals Who are Said Not to Get Along with
Co-workers
 Decision Not to Rehire Individual Who Engaged in Criminal
Acts Against the Employer or Are Laid Off
CHALLENGE TO SPECIFIC
EMPLOYMENT PRACTICES
 The Plaintiff Must Identify Each Personnel Practice Which is
Neutral on Its Face as Having Caused the Disparate Impact
 Plaintiffs Cannot Attack Overall Decision-Making Process
 Plaintiffs Must Identify the Particular Element or Practice
Within That Process Causing Adverse Impact
DISPARATE IMPACT – RELIEF
AVAILABLE
 Equitable Relief
 Injunctive Relief
DISPARATE IMPACT
 Plaintiff’s Burden of Proof
 An Employment Practice Policy or Qualification
 Significant Adverse Effect on a Protected Class
 The Impact of the Minimum Qualification with Respect to
the Terms, Conditions or Privileges of Employment of the
Protected Class
 The Employee Population in General is not Affected by the
Policy to the Same Degree
DISPARATE IMPACT
 Employer’s Defense Burden
 Attack Plaintiff’s Statistical Proof
 The Minimum Qualification or Practice is Job-Related and
Consistent with Business Necessity
DISPARATE IMPACT
 Plaintiff’s Response to Defense
 Business Necessity
 Plaintiff Must Show an Alternate Employment Practice (Other
Tests, Selection Device, Minimum Qualification) without a
Discriminatory Effect would Also Serve the Employer’s
Legitimate Interests and the Employer Refuses to Adopt It
 Plaintiff Must Show that Another Test or Selection Device would
also Serve the Employer’s Legitimate Interests and Have a
Lesser Adverse Impact Upon a Protected Class
DISPARATE IMPACT
 Test Validation
 Factors Court Consider in Determining if a Test has been
Validated:
 Testimony by Experts in the Field of Test Validation
 Guidelines Established by the EEOC Regarding Job Relatedness
TEST CONTENTS
 Factors to Consider to Determine Validity of an Employment
Test or Minimum Qualification
 Suitable Job Analysis
 Reasonable Competence in Constructing the Test
 Content of the Test is Related to Content of the Job
 Content of the Test is Representative of the Content of the Job
DISPARATE IMPACT
 Defense Response to Challenge to Tests:
 Employer must Show the Test is Related to Safe and Efficient
Job Performance and was a Business Necessity (a Test’s
Required Skills and Physical Requirements of a Specific Job)
 Plaintiff Can Still Prevail by Showing There is a Less
Discriminatory Alternative
USE OF CRIMINAL RECORDS
 Criminal Records May Have Disproportionate Impact on
People of Color but Does Not Violate Title VII where
Business Necessity is Shown
 California Law:
 Prohibits Employer Inquiries About Arrests and Detentions That
Did Not Result in Convictions
 Use of Statistical Evidence as Proof:
 Plaintiff will Try to Use Statistical Disparities to Show Disparate
Impact
 Disparity Must be Large Enough That It Is Unlikely to Have
Occurred at Random
JOB QUALIFICATIONS AS BUSINESS
NECESSITY
 Employer Must Show Job Qualification Genuinely Predicts
Which Successful Job Performance or Important Elements of
Work Behavior That Comprise the Job in Question
 Plaintiff Has the Burden of Producing an Alternative
Qualification that Meets the Employer’s Legitimate Business
Needs
DISPARATE IMPACT THEORY
 Three Categories Disparate Impact Theory Has Been
Applied:
 Scored Tests
 Non-Scored Objective Criteria
 Education, Experience, Height & Weight Restrictions, Criminal
Records, Credit Records
 Subjective Criteria:
 Oral Interviews
 Supervisor Recommendations