A. AVOIDING EMPLOYMENT DISCRIMINATION CHARGES

There are many restrictions on employers with respect to the way they deal with employees. These restrictions present many pitfalls for the unwary employer. To some it may be surprising that these restrictions apply before the individual is employed, and even before the employer meets the prospective employee.

In this, there is bad news and good news. The bad news is that the decision making process in hiring (as opposed to disciplinary and discharge situations) often is less structured and less documented, making the decision not to hire more difficult to defend if challenged legally. The good news is that the range of potential legal challenges to hiring is generally narrower than other situations. Challenges typically focus on unfair selection criteria, and most of them fall into the categories explained below.

Avoiding discrimination claims turns on avoiding even the appearance of hiring decisions based on these protected categories or the applicant’s inclusion in a protected class. An applicant reasonably can (and will) assume that all of an employer’s pre-employment inquiries have an impact on the hiring decision. Thus, the employer must stay away from inquiries and topics that give the applicant a factual basis to claim discrimination against a protected class. This, in turn, requires three things of the employer representative: Know the protected classes; know how inadvertent inquiries about an applicant’s inclusion in one or more of these classes may be made; and avoid “small talk” and stray inquiries into these areas.

B. IDENTIFYING PROTECTED CLASSES

Title VII- Race, Color, National Origin, Sex and Religion

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, national origin, sex (including pregnancy) or religion. The law covers all private sector employers who are "engaged in an industry affecting commerce" and who have "fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 42 U.S.C. § 2000e(b). It includes within its coverage labor organizations and employment agencies. It also covers state and local governments. In January 1995, Congress finally made itself subject to Title VII.

Disparate Treatment Cases: Intentional discrimination on the basis of a protected characteristic (i.e., refusal to hire an applicant because the applicant is a minority or a woman).

Disparate Impact Cases: Discrimination that occurs when a facially neutral job requirement (e.g., certain employment tests) has a disproportionate impact upon a protected group of employees.

Mixed Motive Cases: A plaintiff can prevail if he or she can show that a protected characteristic played a role in the employment decision and contributed to that decision even though other nondiscriminatory factors also played a role.

Other Statutes Regarding Race and Gender

Section 1981 of the Civil Rights Act of 1866: Prohibits discrimination in the "making, performance, modification, and termination of contracts (including employment contracts), and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981. Section 1981 applies to "nongovernmental discrimination," as well as to persons acting under color of state law.

Section 1983 of the Civil Rights Act of 1866: Makes it unlawful for a person, under color of state law, to deprive another person "of any rights, privileges or immunities secured by the Constitution and laws," including discrimination on the basis of race, color, national origin, religion, sex and citizenship. Section 1983 applies to cities, counties and other local government entities without regard to the number of employees the entity has. Public officials may be held liable in their individual capacities although qualified immunity may be available. It may also apply to a private employer if the private employer's actions are sufficiently intertwined with state action, regulation, funding or the performance of a public function.

The Equal Pay Act: The EPA, 29 U. S. C. § 206, prohibits sex discrimination in compensation.

Age - The Age Discrimination in Employment Act

The ADEA, 29 U.S.C. § 621 et seq., prohibits discrimination in employment against those age 40 or over. It covers all employers with twenty or more employees. Note, however, that state governmental employers are immune from liability under the ADEA. See Kimel v. Florida Bd. of Regents, 528 U. S. 62 (2000).

Disabilities - The Americans With Disabilities Act

The ADA covers all private sector employers and most governmental employers with fifteen or more employees. All people with disabilities are protected by the ADA. "Disability" is defined under the Act as: a physical or mental impairment that substantially limits a major life activity; or a record of such an impairment; or being regarded as having such an impairment. 42 U.S.C. § 12102(2).

a. Major Life Activity

This is defined by the Equal Employment Opportunity Commission's regulations to include walking, seeing, hearing, speaking, breathing, learning and working. See 29 C.F.R. § 1630.2(i). The Commission's Technical Assistance Manual also includes, as major life activities, sitting, standing, lifting and reading as other examples. See A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans With Disabilities Act § 2.2(a)(ii) (E.E.O.C. 1992). In both sets of guidelines, the Commission stresses that these are only examples and that other major life activities may be identified.

Substantial Limitation

To constitute a disability, the limitation of a major life activity must be substantial. The following factors should be considered to determine whether an individual's impairment is substantial: the severity of the impairment; the expected duration (length of time) of the impairment; whether the impairment is expected to have a long or permanent impact on the individual (i.e., residual effects); and with respect to working, whether the individual is restricted as a result of the impairment in the ability to perform either a broad class or range of jobs as compared with the average person having "comparable training, skills and abilities." See 29 C.F.R. § 1630.2(j)(2), (3).

Prohibited Discrimination

Employers may not discriminate in any way against people with disabilities who are otherwise qualified to perform the essential functions of a job with or without reasonable accommodation.

Essential Functions: Whether a particular job function is essential is determined on a case-by-case basis. Some consideration is given to the employer's judgment in determining which functions are essential. Basically, the job duty is an essential function if the job exists to perform that function, and if removing the function would fundamentally alter the nature of the job. See 29 C.F.R. appx. § 1630.2(n).

Reasonable Accommodation: Employers are required to reasonably accommodate otherwise qualified individuals to enable them to perform the essential functions of a job and enjoy equal benefits. This means making modifications to the job, its particular duties, the work environment, or the employer's practices and policies to ensure equal opportunity for people with disabilities. See 42 U.S.C. § 12111(9). Reasonable accommodation may include: making facilities accessible; reallocating or reassigning job duties; modifying work schedules (including providing part-time work); re-assigning a disabled employee; acquiring or modifying equipment to enhance performance; allowing the use of accrued leave; and providing interpreters. Id.; 29 C.F.R. § 1630.2(o). An accommodation can be almost any measure that allows the individual to overcome the restrictions caused by a disabling impairment.

Known Disabilities: Employers are obligated to accommodate only "known" disabilities, and in general, it is the responsibility of an employee or applicant to request accommodation. 42 U.S.C. § 12112(b)(5)(A). The standard is whether the employer knew or should have known of the disability.

Undue Hardship: An employer is not required to implement an accommodation if the measure would impose an undue or unfair hardship on the employer. Accommodations must be "reasonable" to the employer. Undue hardship is determined by examining the following factors: nature and cost of the proposed accommodation; the impact on the facility; the employer's financial resources; and the employer's operations structure. See 42 U.S.C. § 12111(10); 29 C.F.R. § 1630.2(P).

d. Direct Threat

Employers may take otherwise discriminatory action where a person's impairment would pose a "direct threat to the health or safety" of themselves or others in the workplace. 42 U.S.C. § 12113(b). "Direct threat" is defined as a significant risk that cannot be eliminated by reasonable accommodation. 42 U.S.C. § 12111(3). A determination of direct threat must be based on objective factual evidence, not subjective perceptions or the employer's paternalistic desire to protect the individual or others. There must be, in fact, a high probability of substantial harm caused by placing the employee in the job in question. See 29 C.F.R. appx. § 1630.2(r).

5. The Rehabilitation Act of 1973

This law, also known as the “Vocational Rehab Act,” also prohibits

discrimination against the physically and mentally disabled. See 29 U. S. C. § 794a. It further requires covered employers to take affirmative action to hire protected applicants. The law applies to employers with federal contracts of $10,000 or more.

6. The National Labor Relations Act

The NLRA, 29 U. S. C. §§ 151 et seq., guarantees employees the right to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection – in short, to participate in formal or informal union activities. Employees also have the right to refrain from such activities. It is illegal to discriminate in hiring (or in other terms and conditions of employment) because of an applicant’s exercise of these rights. See 29 U. S. C. § 158(a)(1) and (3). The NLRA covers non-retail employers if they do business in excess of $50,000 per year. Retail employers are covered if their volume, including taxes, exceeds $500,000 annually. This is the vast majority of employers.

7. Family and Medical Leave Act of 1993

The FMLA allows “eligible” employees of a covered employer to take job-protected, unpaid leave, or to substitute appropriate paid leave if the employee has earned or accrued it for up to a total of 12 work weeks in any 12 months because of the birth of a child and to care for the newborn child, because of the placement of a child with an employee for adoption or foster care, because the employee is needed to care for a family member with a serious health condition, or because the employee's own serious health condition makes the employee unable to perform the functions of his or her job. See 29 C.F.R. § 825.100. The Act also requires employers to continue an employee's medical coverage during the leave, and to return the employee to his or her former or a truly equivalent position after the leave is completed.

Non-Interference

Under Section 105 of the FMLA, it is illegal for any employer to interfere with, restrain or in any other manner discriminate against any individual for exercising his or her rights under the Act or opposing any practice that is unlawful under the Act. Presumably, this would include discrimination in hiring (or rehiring).

Covered Employer

The Act covers employers with 50 or more employees for each working day during each of 20 or more calendar workweeks in either the current or the preceding calendar year. Virtually any person or business entity, regardless of form, that affects commerce in any way and has the requisite number of employees is subject to the Act. The definition of an employer also includes any person directing employees, either directly or indirectly, in the interests of an employer. As a result, corporate officers and supervisors "acting in the interest of an employer" are individually liable for any violations of the Act's requirements.

8. Immigration Reform and Control Act of 1986

The IRC, 8 U. S. C. §§ 1151 et seq., makes it illegal for employers to discriminate against applicants because of national origin or citizenship where they are legally eligible to work in the United States. Employers also are required to obtain verification of employment eligibility of all newly-hired employees. This is explained in more detail below.

9. Uniformed Services Employment and Reemployment Act of 1994

USERRA, 38 U. S. C. §§ 4301 et seq., prohibits discrimination against veterans and employees with military commitments. It covers all employers, regardless of size.

10. Polygraphy

The Employee Polygraph Protection Act, 29 U.S.C. §§ 2001-2009, prohibits employers from using “lie detectors” to screen applicants. A lie detector includes a polygraph machine as well as voice stress analyzers, psychological stress evaluators, and other mechanical or electrical devices used to determine honesty. Exemptions permit the use of lie detectors to screen applicants for certain positions in government, security services, the manufacture of controlled substances, and defense contractors. Even then, the employer may not deny employment based on the test results without “additional supporting evidence” for the decision. See 29 U.S.C. § 2007(a).

11. Credit Checks and Consumer Reports

The Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681-1681t, regulates the use and disclosure of consumer reports for employment purposes. While the notion of obtaining or using a “consumer report” may seem unrelated to a basic pre-employment background check, thousands of employers request and use them each year, perhaps without knowing it. They can include reports on employment histories, credit, income, driving records, criminal arrests and convictions, and other personal information. Two types of reports are governed by the FCRA: consumer reports and investigative consumer reports.

Consumer Reports

A consumer report is defined as:

any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for…employment. . . .

Id. at § 1681a(d)(1). Importantly the definition excludes any report containing information solely as to transactions or experiences between the consumer and the person making the report. Id. at § 1681a(d)(2)(A)(i).

Consumer Reporting Agency: The FCRA applies only to reports prepared by consumer reporting agencies. This is “any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in… the practice of assembling and evaluating consumer credit information or other information on consumers for purposes of furnishing consumer reports to third parties. . . .” 15 U.S.C. § 1681a(f).

Conditions on Consumer Reports Use: Before obtaining a consumer report, an employer first must make a “clear and conspicuous disclosure” in writing that a consumer report may be obtained. The employer also must get written authorization from the applicant. A combined disclosure and authorization document is allowed. Before taking any adverse action based on the consumer report, the employer must provide the applicant a copy of the report and a written description of the applicant’s rights as prescribed by the Federal Trade Commission. If adverse action is taken, the employer additionally must provide the name, address and telephone number of the consumer reporting agency, along with a statement that the agency did not take the adverse action and is unable to provide the consumer with specific reasons for the adverse action. Id. at § 1681b.

Investigative Consumer Reports

This is “a consumer report or portion thereof in which information on a consumer’s character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on or with others with whom he is acquainted or who may have knowledge concerning any such items of information.” Id. at § 1681a(e). In addition to the requirements described above, a person may not obtain or cause to be prepared an investigative consumer report unless it is “clearly and accurately” disclosed to the applicant that a report specifically about his or her character, general reputation, personal characteristics and mode of living, may be prepared. This disclosure must be made in writing and mailed or delivered within three days after the report is requested. The disclosure also must include a statement that, upon request within a reasonable period of time, the employer will disclose in writing the nature and scope of the investigation requested. Id. at § 1681d.

12. Significant State Statutory Restrictions

Virginia Human Rights Act: Virginia Code § 2.1-714 et seq. Prohibits discrimination in employment, and otherwise, on the basis of race, color, religion, national origin, sex, age, or marital status. This statute mirrors the prohibitions of the federal statutes previously discussed except that it also prohibits discrimination on the basis of marital status.

Virginians With Disabilities Act: Virginia Code § 51.5-1 et seq. Prohibits discrimination in employment by any employer "solely" because of disability. Employers are required to reasonably accommodate a disabled applicant or employee in the same manner as under the ADA. However, any required accommodation that would exceed $500 is "rebuttably presumed" to impose an undue burden on any employer with less than fifty employees.

Virginia Occupational Safety & Health Act: Virginia Code § 40.1-51.2:1. Prohibits discrimination against an employee because the employee has made a safety or health complaint, or has testified or otherwise exercised his rights under this Act.

Right-to-Work Statute: Virginia Code § 40.1-58 et seq. Prohibits discrimination against anyone because of his or her union membership or lack thereof.

"Sabbath" or "Day of Rest" Statute: Virginia Code § 40.1-28.1. Provides that, "except in an emergency, every employer shall allow each person . . . at least twenty-four consecutive hours of rest in each calendar week in addition to the regular periods of rest normally allowed or legally required in each working day." Under Virginia Code § 40.1-28.2, "nonmanagerial" employees are entitled to choose Sunday as their day of rest. Saturdays also may be chosen if the employee meets certain criteria. There are, however, many exceptions to this day of rest requirement.

DETERMINING EMPLOYMENT ELIGIBILITY

Under the Immigration Reform and Control Act (IRCA), employers are required to verify the employment eligibility of all newly hired employees within three days of hiring. See 8 U. S. C. § 1324a(b) and 8 C. F. R. § 274a.2(b)(i). Interestingly, this law reflects an inherent conflict requiring employers to strike a careful balance between the employment of unauthorized aliens specifically because of their national origin while avoiding discrimination against others on the same basis. Consequently, employers have three obligations in determining employment eligibility under the IRCA: Properly verifying eligibility, specifically excluding those unable to establish properly their authorization to work, and avoiding discrimination against those who are.

1. Verification: The Form I-9 Process

The Form I-9 process is simple. It requires employers to verify two things: the employee’s identity and his or her work authorization. Three lists of documents – columns A, B and C – are identified on the form. A document from column A or a document from each of columns of B and C will satisfy the verification requirement.

Column A: Column A documents are those that by their very nature satisfy the dual requirements. They include a U. S. passport (valid or expired), a permanent resident card or “green card”, a temporary resident card, a certificate of citizenship or naturalization or an unexpired employment authorization card. Any of these documents, standing alone, is sufficient.

Columns B and C: Documents from columns B and C establish only identity or only work authorization, respectively. Relying on documents in these columns, the newly hired employee must produce one from each column to satisfy the requirements. Column B documents establish identity and include a driver’s license, a school or government identification card with a photo, or a voter’s registration card, (even without a physical description). Column C documents establish work authorization and include a Social Security card, a birth certificate, a Certificate of Birth Abroad issued by the State Department, or a Native American tribal document.

2. “Known” Violations

The IRCA prohibits employers from hiring an alien “knowing” that he or she is unauthorized to work in this country. See 8 U. S. C. § 1324a(a)(1)(A). Employers are not liable for unknown mistakes, such as when an unauthorized alien presents forged documents that look authentic. However, this does not permit the employer to accept any documentation and turn a blind eye to an obvious forgery. The employer’s knowledge of a lack of authorization will be inferred where the circumstances would lead a reasonable person to recognize the situation.

3. Common Mistakes

Employment discrimination based on eligibility may take many forms. However, most cases arise where employers are too aggressive in enforcing the IRCA’s requirements, and consequently restrict employment opportunities on the basis of national origin to those who are legally employable. These are the common mistakes:

Pre-Offer Inquiries: Some employers mistakenly inquire about authorization before an offer of employment is made. If no offer is made, the employer puts itself in the position of having to prove that the decision was based upon inadequate documentation (required in a premature inquiry) as opposed to the individual’s citizenship or national origin.

Citizen-Only Policies: A common practice is for employers to establish a “citizen only” hiring policy. Often, this is the result of a misunderstanding about immigration laws and work authorization. Such policy illegally restricts employment opportunities to authorized non-citizens.

Green Card-Only Policies: Another common practice is for employers to require all non-citizens to present a valid green card to be employed. Like citizen-only policies, this policy illegally restricts from employment others who have temporary authorization to work.

Indefinite Right To Work Policies: Related to green card-only policies, some employers make hiring decisions based upon whether the individual’s work authorization will expire at a future date, such as those with temporary residency authorization. Employers argue that such a policy is not based upon any applicant’s national origin or citizenship, but solely on the inconvenience of having to hire people more frequently. The argument does not work.

Refusing Valid Documents: Some employers are too aggressive in their evaluation of documents presented. It is not the employer’s obligation to police sophisticated forgeries. Documents that appear on their face to be valid must be accepted. The employer may reject documents only where they appear objectively invalid upon reasonable review.

Requiring Specific Documents: An employer may not require, prefer or even ask for specific documents to satisfy the Form I-9 process. It is the new employee’s choice.

Extra Documentation: Another common mistake is when an employer requires the employee to produce more than one document from column A or more than one from columns B and C. Again, it is the employee’s choice.

WHAT YOU CAN AND CANNOT ASK IN THE INTERVIEW

Pre-hire inquiries about an applicant’s ability to perform the job function and meet the employer’s performance standard are always permissible. Inquiries into an applicant’s potential inclusion in one or more protected classes are not permissible unless the inquiry is part of a bona fide occupational qualification. In many instances, however, whether an inquiry is permissible or impermissible depends on how you ask the question. The inquiry always should focus on the job’s requirements and the applicant’s ability to perform those requirements. Employers must avoid inquiries into personal information from which the employer might glean both the ability to perform the job’s duties and information about inclusion in protected classes. Below are common examples.

4. Topic: Addresses

Impermissible Inquiries:

How long have you lived at your current address?

What was your previous address?

How long did you reside there?

Do you own or rent your home?

Explanation: These inquiries have nothing to do with the performance of most jobs, and may have a disparate impact on minorities and women.

Permissible Inquiry:

If to be used to contact an applicant, the employer may ask for a current contact information, such as a mailing address.

5. Topic: Age

Impermissible Inquiries:

How old are you?

Date of Birth:

Explanation: Inquiries about age indicate age discrimination. They are irrelevant to an applicant’s job qualifications except to determine the applicability of child labor laws or in very rare instances where age is a bona fide occupational qualification.

Permissible Inquiry:

Are you at least age 18?

6. Topic: Arrests and Convictions

Impermissible Inquiries:

Have you ever been arrested?

Job decisions based on arrest records.

Explanation: Screening applicants based on arrest records will have a disproportionate impact on minorities, particularly male minorities. Employers may rely upon conviction records. Even conviction records may have a disparate impact on minorities. It is advisable to rely on conviction records only if the nature of the crime has a bearing on the applicant’s potential job performance.

Permissible Inquiry:

Have you ever been convicted of a crime?

If so, explain when and where and for what?

7. Topic: Attendance/Reliability

Impermissible Inquiry:

Do you have children?

Who is going to babysit?

Do you have preschool age children at home?

What childcare arrangements do you have?

Are you required to care for anyone at home?

Do you have a car?

How will you get to work?

Explanation: Such inquiries have a disparate impact on females and minorities. However, questions about travel or the use of a car are permissible in those instances where the job duties involve travel.

Permissible Inquiries:

Are there specific times that you cannot work?

Our company requires employees to be punctual and work from 8:00 a.m. to 5:00 p.m. Can you satisfy these requirements regularly?

8. Topic: Citizenship/National Origin

Impermissible Inquiries:

Are you a U. S. citizen?

What is your maiden name?

Do you speak English? (Unless it is a job requirement).

Explanation: This violates prohibitions against discrimination based on national origin and citizenship. It violates Title VII, the IRCA and the Virginia Human Rights Act.

Permissible Inquiries:

Are you legally eligible for employment in the United States?

Have you ever worked under a different name?

9. Topic: Credit

Impermissible Inquiries:

Do you own your own home?

Have you ever declared bankruptcy?

Explanation: This violates the Fair Credit Reporting Act. It also may have a disparate impact on minorities.

Permissive Statement:

A notice that credit references and background checks may be used if authorized by the applicant.

10. Topic: Disabilities

Impermissible Inquiries:

Have you ever had or been treated for the following conditions or diseases (followed by a checklist)?

Please list any conditions or diseases for which you have been treated.

Have you ever been hospitalized?

Have you ever filed for worker’s compensation?

Have you ever been treated by a psychiatrist or psychologist?

Is there any health-related reason you cannot perform your job?

How many days were you absent from work because of illness last year?

Are you presently taking prescription drugs?

Have you ever been treated for drug addiction or alcoholism?

Explanation: Violates the ADA, Rehabilitation Act and the Virginians With Disabilities Act.

Permissible Inquiry:

Describe the essential duties of the position and ask the applicant if he or she can perform them.

11. Topic: Education

Impermissible Inquiry:

When did you graduate from high school or college?

Explanation: This may screen out older applicants. Also if a diploma or degree is not necessary to perform the job, it may have a disparate impact on minorities, females and the disabled.

Permissible Inquiry:

If a diploma or degree is a job requirement, an employer may ask if the applicant has a high school diploma or its equivalent, or a college degree, as applicable.

12. Topic: Emergency Contact

Impermissible Inquiry:

What is the name and address of your closest relative?

What is the name of a relative to be notified in case of emergency?

Explanation: Impact on minorities and marital status.

Permissible Inquiry:

Provide the name and contact information of a person to be notified in case of an emergency. (This request should be made only after the individual has been employed.)

13. Topic: Friends/Relatives

Impermissible Inquiry:

Identify any friends or relatives presently working for the employer.

Explanation: This is a close call. Employers argue that the friends and relatives of reliable workers tend to be more reliable. On the other hand, because of socialization patterns, this kind of hiring criteria will perpetuate present workplace demographics.

14. Topic: Language

Impermissible Inquiry:

What is your native language?

Can you read, write and speak English?

Can you read, write and speak a foreign language?

Explanation: These inquiries will impact minority applicants.

Permissible Inquiry:

Inquiry into English is permitted when truly necessary for effective workplace communication and job performance.

Inquiry into the ability to communicate in foreign languages is permissible when it is a requirement to perform the job.

15. Topic: Military Record

Impermissible Inquiry:

What type of discharge did you receive?

Explanation: Impacts minorities and women. Also may impact those with a disability.

Permissible Inquiry:

What type of training and work experience did you receive while in the military?

16. Topic: Organizations

Impermissible Inquiry:

What clubs, societies and lodges do you belong to?

Explanation: Impacts on minorities and those in unions.

Permissible Inquiry:

Inquiry into the applicant’s membership and organizations that the applicant believes are relevant to his ability to perform the job.

17. Topic: Personal Information

Impermissible Inquiries:

What color are your eyes, hair?

What is your weight?

Explanation: This can screen out race, color, age, and the disabled.

Permissible Inquiry:

Such inquiries are permissible only in rare instances where the employer can demonstrate they are a bona fide occupational qualification.

18. Topic: Religion/Creed

Impermissible Inquiry:

Generally any inquiry into the applicant’s religious denomination, religious affiliations, church, or holidays observed.

Explanation: These inquiries reflect religious and national origin discrimination. An exception is when religion is a bona fide job qualification, such as working in a faith-directed capacity for a church.

Permissible Inquiry:

This job requires regular work on Saturdays and Sundays. Are you available on those days?

THE CURRENT LAW OF NEGLIGENT HIRING

Virginia recognizes claims against employers for “negligently hiring” an employee. Under Virginia law, an employer (or its authorized representative) must exercise “due care in the selection” of employees. J. v. Victory Tabernacle Baptist Church, 236 Va. 206, 208 (1988). These claims are brought when an employer places an employee in a position where the employee can do harm to co-workers or the public.

Elements:

To prove a claim of negligent hiring, a person must show:

The employer hired someone who, for some reason, was unfit for the position in question;

The employer knew or could have learned through reasonable inquiry that the employee was unfit; and

The hiring of the employee was the proximate cause of a person’s injuries. In other words, there is a rational relationship between the employment of the employee and the person’s injury.

Importantly, under this theory, an employer may be liable for the acts of an employee outside the scope of his or her employment duties. An employer does not escape liability because the employee was acting in an unauthorized or even illegal manner, or because the events occurred away from the employment.

Duty to Investigate: In J. v. Victory Tabernacle Baptist Church, 236 Va. 206 (1988), the church hired a man for a position in which he had regular, unsupervised contact with children. It turned out that the new employee was on probation after being convicted of aggravated sexual assault on a young girl. A condition of his probation was that he not be involved in any way with children. The employee allegedly raped and sexually assaulted a ten-year old girl under the periodic care of the church. The Supreme Court of Virginia found that the church, as an employer, could be liable for the injuries suffered by the girl as a result of the negligent hiring. The church had a duty to investigate the background of the man before hiring him for this position.

Off Duty Actions: Liability may be imposed for negligent hiring even if the employee was acting well outside the scope of his employment. In Terrell v. Rexrode, 25 Va. Cir. 114 (1991), employees were required to live on the employer premises. While off duty, the plaintiff/employee allegedly was “assaulted, battered and forced to attempt to engage in oral sodomy with another male” by three co-workers. The employer claimed that it could not be liable for actions outside the scope of employment. The court disagreed, ruling that the employee could maintain a lawsuit for negligent hiring since he alleged that the employer knew or should have known that these employees had a propensity for violence.

Separate Cause: Virginia appears to follow the minority view of jurisdictions that an employer can be held liable both for its own negligence in hiring someone arguably unfit and for the negligent actions of the employee in question. See Fairshter v. American Nat’l Red Cross, 322 F. Supp. 2d 646 (2004).

About the author: Thamer E. "Chip" Temple III is a Principal of the Firm practicing primarily in the area of labor and employment law, representing management and executives in all areas of employer rights.

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