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Employment Law
University of Cincinnati School of Law
Spring, Gary W.

PART 1: THE HIRING PROCESS

I) INTRODUCTION
A) Cases
1) Kotch(S Ct 1947)
(a) Facts: Several river pilots sought to challenge state law that required pilots seeking to be certified by the state to serve a 6-month apprenticeship under incumbent pilots, who usually reserved the apprenticeships for friends & relatives
(b) Rule: A state may justify a policy of nepotism in gov’t hiring only if it seeks to serve a useful function. Nepotism will rarely be justified
(c) Analysis: Lower courts read this case not to imply that nepotism in gov’t hiring is per se legal, but rather, that it requires some measure of justification. What level that justification need reach is uncertain. The dissent points out that nepotism should not be justified on grounds of efficiency b/c the EPC prohibits such a justification. The main point of dissent is that nepotism, a practice which may seem neutral on its face, carries the potential that it will be used to exclude minorities from certain jobs. In view of this danger, nepotism in the public & private sector is now usually challenged under Title VII as an employment practice that has a disparate impact on minorities.
(d) Notes
(i) Backlund (8th Cir 1997)
1. Applicant for city firefighter position w/ the highest test score was passed over in favor of three lower-ranking candidates who were related to fire department employees. The plaintiff claimed that the nepotism violated equal protection. In reversing the district court’s dismissal of the claim, the 8th Cir distinguished Kotch and observed that in Kotch the state justified the policy in light of “the unique character of river piloting.” It held that “Kotch makes it abundantly clear that nepotism in government hiring requires some measure of justification before it can pass constitutional muster.”
(ii) Vogler (5th Cir 1969)
1. Nepotism, per se, does not violate the nondiscrimination provisions of Title VII, but if the effect of nepotism is discrimination under Title VII, it is illegal
2. The union had a policy restricting membership to sons or close relatives of current members. The effect of the policy was to perpetuate the exclusion of minorities from the all-white union. The court invalidated the policy.
2) Consolidated Services Systems (7th Cir 1993)
(a) Facts: A Korean-owned business was accused of intentional discrimination by recruiting prospective employees through word-of-mouth recruitment, a practice which resulted in a disparate number of Korean employees.
(b) Rule: Word of mouth recruitment does not give a rise to an inference of intentional discrimination
(c) Analysis: There was no disparate treatment b/c employer sat back and did nothing; did not actively recruit. There was no disparate impact b/c the number of Koreans (protected class) outnumbered number of Whites (not protected).
(d) Notes:
(i) Discriminatory want ads are expressly prohibited by Title VII (except when justified by bona fide business reason). Although the content of want ads is regulated, the ads may run in publications with limited readership (e.g., no Title VII violation to run ads only in Chinese newspaper)
(ii) EEOG v. OG Spring & Wire (7th Cir 1994)
1. Facts: Chicago wire press shop hired 87 people for low-skilled press jobs, none of whom were black. There was no other specific evidence of discrimination. The employer’s defense was that blacksx were unwilling to work in the jobs b/c they were held mostly by Polish and Spanish-speaking workers.
2. Holding: The employer violated Title VII
II) UNDOCUMENTED ALIENS
A) Statutes
1) Immigration & Reform Control Act of 1986 (IRCA)
(a) Purpose
(i) The purpose is to reduce immigration by eliminating ability of immigrants to find employment
(b) Requirements
(i) All employers must request documentation of authorization to work (Form I-9).
(ii) The EEOC suggests that employers request this information only after extending an offer (so as to avoid exposure to later claims of discrimination)
(iii)If employer unknowingly hire illegal aliens, or if worker becomes unauthorized to work while employed, employer must discharge employee upon discovery of illegal status.
(c) Fines
(i) The INS (now ICE) can levy either civil or criminal penalties against employers guilty of paperwork or illegal hiring violations.
(ii) Civil penalties of $250 to $10k may be assessed against an employer who knowingly hires or continues to hire an unauthorized worker.
(iii)An employer who engages in a “pattern or practices” of hiring undocumented workers is subject to criminal fines of up to $3k for each undocumented employee, and up to 6 months in jail.
2) Racketeer Influenced & Corrupt Organizations (RICO)
(a) In General
(i) Originally enacted to combat organized crime—not to remedy general statutory criminal violations.
(ii) However, RICO has evolved into a broader remedy to address private, civil wrongs.
(iii)Plaintiffs often graft RICO claims onto fraud claims
(b) Prima Facie Case
(i) Conduct; Of an enterprise; Through a pattern; Of racketeering activity
(ii) Injury of business or property “by reason of” (direct & proximate causation) violation
(c) Remedies
(i) Treble damages + reasonable attorney fees
B) Cases
1) Hoffman (S Ct 2002)
(a) Facts: Supreme Court reversed backpay award to illegal alien employee, who was terminated allegedly for union campaigning
(b) Rule: The IRCA forecloses awarding backpay to undocumented aliens who are not legally authorized to work in the US.
(c) Analysis: This case presented a choice of two evils: Allow NLRA violations to go without remedy or award illegal aliens backpay. Court put policies of IRCA ahead of NLRA.
(d) Notes:
(i) Farmers Bros Coffee (Cal Ct App 2005)
1. Court held that an undocumented alien who was injured on the job was entitled to state workers’ compensation. The court rejected the arguments that federal immigration law preempts the workers’ compensation claim a

his case, there was a factual issue as to whether the employee was discharged from his employer because of poor job performance or because of the phone call from the USPS. There was also an issue as to whether the disclosure was “intentional or willful.”
(d) Notes:
(i) Title VII does not specifically prohibit employers from asking any questions about an applicant’s race, color, religion, sex, or national origin. Nevertheless, “inquiries which either directly or indirectly disclose such information, unless otherwise explained, may constitute evidence of discrimination prohibited by Title VII. Thus, by declining to ask such questions employer avoid obtaining information that might be used in an effort to prove discrimination.
(ii) In 2004, the EEOC and other agencies jointly proposed a definition of an Internet “applicant.” Under the proposal, a person would be an applicant if three conditions are met: (1) employer has acted to fill a particular position; (2) the individual has followed the employer’s standard procedures for submitting applications; and (3) the individual has expressed an interest in the particular position.
(iii)Pittsburgh Press (S Ct 1973)
1. Court held that a newspaper’s 1st Amendment rights were not abridged by finding that it violated a city fair employment ordinance by having a gender-segregated want ad column. Since that time, virtually all newspapers have abandoned gender-segregated want ads and they also refuse to publish any discriminatory help wanted ads. The same is not true for internet sites, such as Craigslist, which impose no restrictions on want ads. Consequently, some ads contain legally impermissible criteria. Lawsuits against online companies have held that they cannot be sued, in effect, saying that websites are different from newspapers.
(iv)Applicants who misstate their background, qualifications, work history, or other matters need not be hired when the misstatements are discovered. If the misstatements are not discovered until after the individual begins work, the misstatements will establish cause for discharge. If the misstatement is not discovered until after an allegedly unlawful discharge, the courts will determine the applicability of “after-acquired” evidence, which will decide what effect, if any, the post-discharge evidence of wrongdoing (which may include preemployment and employment related matters) should have.