The Civil Rights Act of 1964 and its extension, the Civil Rights Act of 1991, provide broad prohibition against discrimination based on race, color, sex, religion, and national origin. These laws, which state that such discrimination in all terms and conditions of employment is illegal, affect selection as well as many other organizational programs, including performance appraisal and training.

To decrease the chances of lawsuits claiming discrimination, firms should ensure that selection techniques are job related. In other words, the best defense is evidence of the validity of the selection process. For example, if a minority group member who was turned down for a job claims discrimination, the organization should have ample evidence to document the job relatedness of its selection process. This evidence should include job analysis information and evidence that test scores are valid predictors of performance.

The Age Discrimination in Employment Act of 1967 and the 1978 amendments to the act prohibit discrimination against people aged 40 and older. Again, the organization needs evidence of the validity of the selection process if older applicants are turned away—particularly if comparable but younger applicants are hired.

The Americans with Disabilities Act (ADA) of 1991 extends the Vocational Rehabilitation Act of 1973 and provides legal protection for people with physical or mental disabilities. ADA requires employers to provide reasonable accommodations for people whose disabilities may prevent them from adequately performing essential job functions, unless doing so will create an undue hardship for the organization. Thus, employers need to determine what constitutes a job’s essential functions. Although the law does not clearly define “reasonable accommodation,” the courts may deem reasonable such actions as modifications in schedules, equipment, and facilities. In terms of selection, ADA prevents employers from asking applicants whether they have a disability and prohibits the requirement of medical examinations before making job offers. However, an employer can ask applicants whether they can perform a job’s essential functions. Also, job offers can be made contingent on the results of a medical examination.

Affirmative action must also be considered. Federal Executive Order 11246 requires organizations that are government contractors or subcontractors to have affirmative action programs in place. These programs are designed to eliminate any underutilization of protected group members that might occur in an organization’s employment practices (see Chapter 3). Affirmative action is not the same as the equal employment opportunity required by Title VII of the Civil Rights Act and related legislation. Making job-related selection decisions while not discriminating against subgroups is not the same as setting utilization goals. However, organizations that are not government contractors or subcontractors can lose the privilege of selecting employees solely on the basis of expected job performance if they are found guilty of discrimination. In that case, they can be ordered to put an affirmative action program in place.

The final legal issue in staffing concerns claims of negligent hiring. Negligent hiring refers to a situation in which an employer fails to use reasonable care in hiring an employee, who then commits a crime while in his or her position in the organization. Because claims of negligent hiring have increased over the years,107 managers need to be particularly sensitive to this issue. For example, Avis Rent A Car hired a man without thoroughly checking his background; the man later raped a female coworker. Avis was found guilty of negligent hiring and had to pay damages of $800,000. Had the company carefully checked the information provided in the man’s job application, it would have discovered that he was in prison when he claimed he was attending high school and college. Employers are responsible for conducting a sound investigation into applicants’ backgrounds. Factors such as gaps in employment or admission of prior criminal convictions should prompt closer investigation. To avoid liability for negligent hiring, employers should:108

• ▪ Develop clear policies on hiring as well as on disciplining and dismissing employees. The hiring policy should include a thorough background check of applicants, including verification of educational, employment, and residential information.

• ▪ Check state laws regarding hiring applicants with criminal records. What is legal in this area varies widely among states.

• ▪ Learn as much as possible about applicants’ past work-related behavior, including violence, threats, lying, drug or alcohol abuse, carrying of weapons, and other problems. Keep in mind that privacy and discrimination laws prohibit inquiries into an applicant’s personal, non–work related activities. Behavioral problems may be investigated only in the context of their possible effect on job performance.