THE HIRING PROCESS
Nepotism
Kotch v. Board of River Pilot Commissioners p. 82
a) 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?
b) Rule: Nepotism in governmental hiring requires some measure of justification before it can pass constitutional muster.
c) Analysis: The state legislature must have weighed the obvious possibility of evil against whatever useful function a closely knit pilotage system may serve.
d) Conclusion: 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… 14th amendment equal protection.
e) Note: Nepotism does not violate Title VII discrimination per se unless effect of nep. is discriminatory, i. e.
i. disparate treatment – discriminatory intent
ii. disparate impact – adverse impact
See notes p. 3 for affirmative action and government contracts
Discriminatory hiring
EEOC v. Consolidated Service Systems p.86
1) Facts: 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.
2) Issue: Is it permissible for a small business to depend on word of mouth recruiting when it results in a non-ethnically diverse workplace?
3) Rule: Posner, J. – 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.
a) 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.
4) Analysis: 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.
a) There is not proof that the employer did this with the intention of not getting the information out to other people.
5) Conclusion: Court seems to hold efficiency of hiring process can justify disparate impact – 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. Soliciting applicants and Title VII
1) Discriminatory want ads are expressly prohibited by Title VII
2) Er must have 15+ Ees to fall under VII.
a) Unlawful to print, publish, or cause to be print or publis
ss to Jobs
i. Residency
1) Wardwell v. Board of Education
2) Facts: School district enacted a law that required all future hires to be resided in the city in which they were employed.
3) Rule:
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.
4) Analysis:
a) There are a number of rational bases for the residency requirement:
1) Aids in hiring teachers highly motivated and committed to the urban educational system.
2) Teachers are more likely to be involved in school and community activities.
3) Most likely to gain sympathy and understanding for the racial, social, economic, and urban problems of the children they teach.
b) The limited applicability of the rule may be its most questionable feature (it exempts those employees hired before the enactment) but it is not necessary that it fail simply because it does not apply to all teachers in the district.
