Legal Aspects Of Selection And Promotion

Front 1

Define the legal burden of the public employer in the selection and
promotion process;

Back 1

Understand that the Goals of Employment Law are:
a. fundamental fairness in creating the process

b. non-discriminatory practices in execution of the process

c. equal opportunity for all qualified candidates in all aspects of the process

d. Selection of the most suitable candidates in a legal manner

2. Validate the Hiring process
Insure that the agency is using a process that is fairly predictive of actual job performance and all aspects of the process are job-related.

3. Follow the established Policy

Once a policy and procedure has been established for selection and promotion it is crucial that is followed. Do not neglect or violate your own policies and procedures or take “short cuts”. A short cut is the fastest path to liability to the candidate, third parties or an injured member of the public

Front 2

• Explain aspects of the Fair Labor Standards Act;

Back 2

a. fundamental fairness in creating the process

b. non-discriminatory practices in execution of the process

c. equal opportunity for all qualified candidates in all aspects of the process

d. Selection of the most suitable candidates in a legal manner

Front 3

CONSTITUTIONAL THEORIES

Back 3

is only available to public sector employees. The Claim is made that there has been a violation of the Equal Protection Clause of the 14th Amendment of the US Constitution which states in relevant part:
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny any person within its jurisdiction, the equal protection of the laws.”
These claims require proof of INTENTIONAL discrimination. This clause does not require all persons be treated equally under the law at all times, but only insures that a classification made in a statute or by an employer’s action is REASONABLE.

Front 4

STATUTORY THEORIES

Back 4

These options are available to both public and private sector employees. The plaintiff must prove that there was violation of a particular discrimination statute that caused an illegal discrimination result. Several federal statutes may be the basis of a discrimination claim and many states have similar statutes or even ones that extend beyond federal protections, such as prohibiting employment discrimination based upon sexual orientation

Front 5

Describe the prohibitions under the Civil Rights Act of 1991;

Back 5

1. It specifically prohibits “race norming” which is a practice of adjusting test scores based on race, religion, sex or national origin for hiring or promotions. It prohibits different standards even if the purpose is to guarantee higher number of persons from one group would qualify.

2. It forbids differing performance standards based on gender and age for applicants and current employees on written or physical agility examinations. Standards must be valid and defensible, meaning they are job related and scientifically valid.

3. It allowed for jury trials for Title VII, ADA and Pregnancy Discrimination Claims.

4. It allowed for punitive damages for intentional discrimination claims based on religion, sex and disability. (Previously they were allowed only for intentional race and national origin claims.)

5. Damage limits are imposed and based on the size of the employer

Front 6

Explain factors involved in discrimination cases under the Equal Pay Act

Back 6

VII. EQUAL PAY ACT OF 1963
This federal statute requires that men and women be paid equally for performing the same work.
The Act considers not only wages, but all payments to employees including benefits.
Equal work means two jobs are substantially equally, not exactly equal. The courts focus on job activities, not skills, qualifications or job titles.
Employer Defenses include:

1. gaps in wages are from seniority, not discrimination

2. earnings are measured by quantity or quality of production

3. a merit system is in place, which might include speed, skill, accuracy, experience

4. differential is based on any factor other than gender

Front 7

Characterize the impact of the Americans with Disabilities Act on police
agencies;

Back 7

If a person is qualified to perform the essential job functions except for the limitations of the disability, the employer must consider whether the person could perform these functions with a reasonable accommodation.
The employer is expected to consider the primary duties of the job taking into account the time spent performing those duties, the skill requirements and the necessary work experience.
A written job description is strong, but not conclusive, evidence of the essential job functions. If what incumbent employees actually do fails to match the written essential functions the courts tend to look at the reality rather than the written description

Front 8

• Describe the purpose and protections of the Pregnancy Discrimination Act;

Back 8

- cannot refuse to hire the person as long as employee can perform the essential job functions

- must hold the position open for same length of time as for any other medical disability leave

- must provide health insurance on the same basis as for other medical conditions

- Cannot limit benefits to married employees

Front 9

Explain the purpose and protections of the Family and Medical Leave Act

Back 9

requires a covered employer to grant up to twelve weeks of unpaid leave for a serious health condition of an employee or family member, including the birth or adoption of a child, or the placement of a child into foster care for an eligible employee.

an employee who has worked at least 1250 hours for the agency during preceding 12 months.
Leave can be intermittent, subject to certain restrictions of the Act.