EMPLOYMENT LAW – FALL 2007
1) THE HIRING PROCESS
i. Kotch v. Board of River Pilot Commissioners
1) Issue: Is it a violation of equal protection for pilots to have unfettered discretion under the law in the selection of apprentices, when the selections made are only the relatives and friends of incumbents?
a) Nepotism in governmental hiring requires some measure of justification before it can pass constitutional muster.
a) The state legislature must have weighed the obvious possibility of evil against whatever useful function a closely knit pilotage system may serve.
a) The object of the entire pilotage law is to secure for the State and others interested the safest and most efficiently operated pilotage system practicable… We cannot say that the practice that appellants attack is the kind of discrimination which violates… equal protection.
ii. EEOC v. Consolidated Service Systems
a) The owner of a janitorial company is a Korean immigrant is charged with discriminating in favor of persons of Korean origin in violation of Title VII. 73% of the applicants for jobs at his company were Korean and 81% of the hires were Korean.
a) Is it permissible for a small business to depend on word of mouth recruiting when it results in a non-ethnically diverse workplace?
a) Word of mouth recruiting does not compel an inference of intentional discrimination – at least not where it is the cheapest and most efficient method of recruitment.
b) It is not discrimination, and it is certainly not active discrimination, for an employer to sit back and wait for people willing to work for low wages to apply to him. The fact that they are not ethnically diverse does not impose a duty to spend money advertising.
a) If an employer can obtain all competent workers he wants, at wages no higher than the minimum that he expects to have to pay, without beating the bushes for workers – without in fact spending a cent on recruitment – he can reduce his costs of doing business by adopting this word of mouth recruiting tactic.
b) There is not proof that the employer did this with the intention of not getting the information out to other people.
a) If the most efficient method of hiring, adopted because it is the most efficient, just happens to produce a work force whose racial or religious or ethnic or national origin or gender composition which pleases the employer, this is not intentional discrimination.
iii. Notes and Questions
1) Discriminatory want ads are expres
1) Discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.
2) This only prohibits encouragement or discouragement of union membership accomplished by discrimination. Thus, even if a hiring hall encourages union membership, it is not illegal if the hiring hall is run in a non-discriminatory manner.
b) Legal Restrictions on Access to Jobs
i. Wardwell v. Board of Education
a) School district enacted a law that required all future hires to be resided in the city in which they were employed.
a) A “compelling state interest” is required in order to institute a durational residency requirement burdening interstate travel.
1) Strict scrutiny
b) Where a continuing employee residency requirement affecting at most the right to intrastate travel is involved, the “rational basis” test is the touchstone to determine its validity.
1) Rationally related to a legitimate government objective.