Corporate Social Responsibility (CSR): A Conceptual and Theoretical Shift

Abstract

Although class claims under the Americans with Disabilities Act are difficult to certify under Fed. R. Civ. P. 23 due to the individualized inquiry to determine class member's disability status, there are some viable class theories where disability status will not be the central focus, particularly if the EEOC (which is not even required to comply with Rule 23) files suit. For example, employers could face class claims under the ADA if they consistently ask disability-related questions during interviews, require applicants to report past occupational injuries or their workers compensation histories before conditional offers of employment are made, or conduct medical examinations before conditional offers of employment are made. The ADA also requires employers to provide reasonable accommodation in the hiring process, such as with an employment examination. The ADA also prohibits the use of employment tests that screen out disabled applicants at a disproportionate rate unless the test is shown to be job-related and consistent with business necessity. Before the next wave of recruiting and hiring, the prudent employer coming out of the recession will develop strategies to avoid systemic class claims in the hiring process. Companies should update their recruiting and hiring policies, implement new objective criteria to qualify and screen applicants, professionally validate employment tests and establish a defined hiring practice that can pass legal muster if challenged by applicants. An employer should not embrace new technology in the hiring process unless it has fully analyzed that it would not have an adverse impact on racial minorities, women or other protected groups. Additionally, those involved with making hiring decisions, particularly those on the front line, should be trained to uniformly and consistently apply objective criteria to all applicants.