The Excuse Factory. Cet article n’est pas disponible.The Excuse Factory

Book by Olson Walter

Chapter 1

HIRING HELL

When Martin K. joined the Boston police force, the application from included a question about whether he'd ever been admitted to a hospital. He declared under oath that he had not, which was quite a whopper: actually, he'd been admitted five times to Veterans Administration facilities for psychiatric inpatient care. When it learned of the untruth, the city fired him. Aside from whether someone with his medical history should be toting a gun in the name of the citizenry, it figured Martin's lie in a sworn statement was disqualification enough for a job where he would frequently be asked to give credible testimony under oath.

The state high court ruled against the city and ordered him reinstated with back pay and damages for emotional distress. It said Mass-achusetts handicap-rights law prohibited employers from taking into account job applicants' medical history; including mental health treatment; would-be cops were no exception. Since the city had no business taking past hospitalization into account, it had no business asking about it. And since it had no business asking about it, it also had no right to act on the basis of responses to its question -- a sort of employment-law analogue to the exclusionary rule in criminal law.

The case was no fluke. In many other cases, lawyers were succeeding in advancing the notion that if a question is improper, a job applicant needn't answer it truthfully; it's known as the "right to lie."

The hiring and interview process is the place everyday managers are most likely to encounter the new employment law. And the new law -- especially as applied by the federal Equal Employment Opportunity Commission -- has made the regulation of hiring one of its special missions. The result has been to give not only managers, but also applicants, a lot of new things to be nervous about.

The legal hazards begin with the classified ad. Statements such as "recent grads," "young office," "beginner," and "ideal for retiree" have all set companies up for age-bias suits. On the other hand, "career prospects," "possible long-term situation," and the like have been seized on as grounds for claims that the employer was implicitly promising tenure and thus forfeiting its right to fire later without "good cause." Employers have also been targeted by complaints for buying ads in the big local newspaper without advertising in smaller publications catering to black or foreign-language readers. (Many such publications, aware of the captive ad base, charge rates quite a few times higher than their circulation would otherwise seem to justify.) The EEOC has said some employers may even violate the law if they run a classified ad that gives only a voice telephone number, without an address or teletype number for the convenience of deaf applicants.

The interviewing of job applicants comes under remarkably intense legal pressure, with any number of everyday questions considered off-limits. One consultant describes it as hazardous to ask whether an applicant has friends at the company, since white males might have more. If a question is forbidden by itself, of course, it's also generally forbidden as a follow-up to an applicant's puzzling or unsatisfactory statement or résumé entry. Many managers try to guess age from dates in personal history; another common ploy is to toss the ball into the applicant's court by asking open-ended questions in the hope he'll volunteer information that couldn't be probed for directly.

Inappropriate interview questions can serve as a basis for cash damages all by themselves, even if an applicant would not have been offered a job. Managers at the Community Coffee Ct). of Baton Rouge, Louisiana, allegedly asked insensitive questions of a sales applicant whose handicaps included facial disfigurement as well as visual and hearing problems; a jury agreed he wouldn't have landed the job but voted him $15,000 anyway for his emotional distress, plus $30,000 in punitive damages to teach the company a lesson.

Other careless comments pose a danger of giving a later complainant something to seize on as a binding promise of tenure. Attorney Alan Koral notes that "it is probably safe to say that 'this is a nice place to work' or 'we want our employees to be happy with their jobs.'"

What about reference-checking? That runs into its own problems. Until the 1980s or so American courts largely shielded employers from defamation suits arising from bad references or other comments on employee performance. Quite suddenly, though, a series of decisions knocked down the old "qualified privilege." A New York court ruled that describing a former employee as having been fired "for cause" was reason enough to send a defamation case to a jury. "Malice" could be shown, courts decided, if a company showed "conscious indifference" to the impact of its words on the former employee. Invasion of privacy and infliction of emotional distress are among other newly popular theories; the Ninth Circuit in 1989 upheld a $1.4 million award against a railroad for "intentional interference" with an ex-worker's prospects. Mentions of a former employee's proclivity toward alcohol or drug abuse -- or bad behavior linked to such abuse -- are especially dangerous, running afoul of privacy and disabled-rights concerns as well as the rest.

Where managers have tried to dispense largely positive evaluations interspersed with a caveat here and there, lawyers have interpreted it as an attack on their clients that is all the more damaging for being coded. Giving references only where one can be enthusiastic, and keeping mum otherwise, has run into claims that silence about one former worker under such circumstances is tantamount to a negative comment. And even giving positive references to everyone is dangerous. "An employer who fires you but gives you a positive reference...is just begging to be hit with a wrongful discrimination suit," writes attorney Lewin Joel. "After all, if you were such a good employee, what was the real reason you were fired?"

Some commentators have pointed out that relatively few reference suits make it to trial or win big awards. But the reason is hardly a mystery; the point of this kind of legal weaponry is to serve as a threat rather than to have to be carried through -- and the threat works very well. The giving of references is for the most part a volunteer activity carried on from a sense of public spirit, and it is easy to pull back once a liability risk appears. Most big employers soon retreated, therefore, to an almost wholly uninformative name-rank-and-serial-number recitation of dates worked and titles. In other cases, the wording of a reference is set in exit negotiations with a worker's lawyer. Some courts even order employers to provide favorable references to workers who have sued them, in what might seem a remarkable example of compulsory insincere speech for the purpose of fooling blameless third parties.

Though some state legislatures have heeded a business outcry by passing laws intended to restore limited immunity for giving references, it has not proved easy to restore confidence overnight, especially as ingenious lawyers start looking for ways around the limits. The atmosphere remains unrecognizably different from that of a generation ago. "Regarding character, we are wandering in a wasteland," Cleveland recruiter Alan Schonberg told the New York Times.

Reference-giving was also the subject of one of the EEOC's most exotic crusades over the years. The commission has insisted that the entire process of checking references has "adverse impact" on blacks, who allegedly will receive poorer references than others. Hence, it has held, employers should not be permitted to check references unless they have carried out elaborate studies to validate the use of the practice in their particular circumstances. The commission spent years in court suing the National Academy of Sciences on behalf of one black applicant whom the NAS had decided not to hire after her reference came in negative. (The bad reference was itself conceded as not unfair or racially motivated.) The prospective employer finally won after hiring two academics who conducted elaborate analyses of its personnel records and showed that aside from the single case at issue, its policy of checking references had not worked to reduce the number of blacks hired; in fact, few applicants of either race had received bad references. Though it lost that case, the commission has apparently never given up on its wider view that reference-checking is to be held legally suspect.

The EEOC's view that reference-checking is inherently unfair to minorities is just one of the countless applications of its famous doctrine of "disparate impact," approved by the Supreme Court in the celebrated case of Griggs v. Duke Power, laid out in the Uniform Guidelines on Employee Selection Procedures more than two decades ago, and minutely analyzed in flume-jamming flows of legal commentary ever since. The doctrine essentially provides that any employee selection procedure with adverse impact against any protected group will be unlawful unless an employer is willing on demand to validate its business necessity. Almost every phrase in the preceding sentence might better be enclosed in quotation marks, since each is an ambitiously broad term of art:

* Employee selection procedure means virtually any screening method an employer might use to choose among applicants: education or experience requirements, consideration of standardized test results, typing speeds, height, possession of a driver's license, and so on.

* Adverse impact occurs when members of some protected group fail to make it through the process in numbers proportional to their share of (1) the general population, (2) the workforce, (3) the pool of workers who are in some sense qualified for the particular job, or (4) those who in fact applied. Complainants have used all these theories, depending on which comes out most favorably for them; they also gerrymander the geographic bounds from which the group is drawn, so that a suburban employer accused of hiring too few blacks may find its numbers compared with those of the whole metropolitan area, while one in the inner city may find the comparison pool drawn only from within city limits. Nothing deliberate or invidious need be shown, and proof of nondiscriminatory intent is irrelevant. Virtually all neutral hiring practices show disparate impact: educational requirements show it against blacks, height requirements against women, and so forth. As a result, all are suspect.
* Validate means that the employer must be willing to offer affirmative, more or less scientific studies to back up its decision to use such a selection method. Such studies, if done from scratch, can cost hundreds of thousands or even millions of dollars. The EEOC maintains fabulously stringent guidelines for validation, which the courts only sometimes accept (being at other times more lenient toward employers). Even when courts approve a method as adequately validated in one case, they seldom set out a green light for other employers: plaintiffs can go back to challenge the same method again when it is used by the next employer, and not infrequently they get it struck down.

* Business necessity, more than the other terms, has varied in stringency with changes in the mood of the Supreme Court and lower courts. Fans of adverse-impact law, in line with the usual meaning of necessity, think courts should make it virtually impossible for employers to validate procedures unless they are necessary for them to stay in business. Only a minority of courts have taken that view; the Supreme Court wavered for years, then in Wards Cove v. Atonio (1989) moved toward a markedly more permissive view in which employers would have to show only the general rationality of their selection methods. In 1991 Congress reversed Wards Cove and restored the earlier (but far from coherent) state of the law.

EEOC and court interpretations have turned the disparate-impact theory into a thing of magnificence, a regulatory Eighth Wonder of the World, endowed with a seemingly endless array of oubliettes, hidden vaults, and sunless dungeons. Virtually every set procedure an employer might choose to make part of its hiring process is suspect. Does it recruit only by advertising, or never by advertising? Either practice might have disparate impact on one group or another. The chill on minimum education or experience requirements has helped scare many employers out of asking for diplomas and transcripts, even though many courts have in the event upheld such standards. New York City has found that the best predictor of police recruits' performance -- of the questions it is still permitted to ask -- is their record in previous jobs, but groups suing the city charge that "favor[ing] candidates who have been able to hold a single job for several years" perpetuates "white, middle-class values."

Having grown out of discrimination law, disparate-impact doctrine is still mostly discussed on the basis of its implications for minority interests. But it has far wider effects, which are felt in countless situations where minority status as such could not be the issue -- that is, where neither of the candidates vying for a position is white or male, or where both are. Thus minimum height requirements for security guard or firefighter positions are subject to disparate-impact challenge because of their adverse impact on Asians and females; the law, however, equally forbids the use of the criterion to decide between two Scottish-American males of markedly different height. In fact, it is quite erroneous to imagine that the disparate-impact theory somehow applies only when employers are suspected of somehow wanting to exclude a group by proxy. Flight attendants with surplus poundage won millions by arguing that airline weight requirements had disparate impact on women, who find it harder to keep their weight down. But whatever can be said for or against weight rules, we may be sure that airlines did not devise such rules as a way of reserving flight attendant jobs for men; women held the great majority of attendant jobs, and indeed male applicants were winning in other courts after alleging the airlines had consciously favored women.

In so-called pattern-and-practice cases, the EEOC can identify a practice with disparate impact and then demand "back pay" for the entire class that went underrepresented in the employer's workforce, even though this may constitute a group ten or fifty times more numerous than the actual number of positions for which the employer was hiring. In the 1980s, Chicago utility Commonwealth Edison hired females for 11 percent of its meter-reading jobs. The commission said this was not enough, but the company would have had to turn away large numbers of women in any event, because it got an estimated 100 applications for each position. So the EEOC simply negotiated a settlement dividing $3 million equally among all 3,000 women who applied ($1,000 for each), on the apparent theory that when all have won, all must have prizes. (This case refutes clearly enough the widely held notion that the function of "back pay" is somehow not to punish the employer but to make everyone whole.) In another well-known case, the commission demanded that the Daniel Lamp Company place $10,000 worth of ads to find black applicants against whom it might have discriminated, and pay a further $123,000 as supposed back pay to those who might step forward as a result -- a sum apparently arrived at before any look at the situations of the not-yet-unidentified claimants. The actua...