Greetings, jwgoerlich!
First of all, I have to post this disclaimer that information posted
on Google Answers is not legal advice, and in no way represents or
substitutes for the advice of an attorney.
I am going to give you a layperson's answer in the first part of this
Answer; the technical and legal citations will follow.
First of all, employment or hiring agencies in Michigan are required
to meet certain standards, including licensing. If you decide to
pursue your own employment consulting business, you will need to make
sure that you comply with this law.
Federal law sets a "floor" or miniumum for hiring and employment laws.
It does not prevent a state from setting higher standards, but the
state may not set lower standards. Typically, states will pass laws
regarding what behaviors are prohibited rather than those that are
permitted; thus, an employment practice that is not forbidden by
Federal or State law *AS INTERPRETED BY THE COURTS* is legal.
Questions and Answers regarding "Federal Laws Prohibiting Job
Discrimination" can be seen here:
http://www.eeoc.gov/facts/qanda.html
"What Are the Federal Laws Prohibiting Job Discrimination?
- Title VII of the Civil Rights Act of 1964 (Title VII), which
prohibits employment discrimination based on race, color, religion,
sex, or national origin;
- the Equal Pay Act of 1963 (EPA), which protects men and women who
perform substantially equal work in the same establishment from
sex-based wage discrimination;
- the Age Discrimination in Employment Act of 1967 (ADEA), which
protects individuals who are 40 years of age or older;
- Title I and Title V of the Americans with Disabilities Act of 1990
(ADA), which prohibit employment discrimination against qualified
individuals with disabilities in the private sector, and in state and
local governments;
- Sections 501 and 505 of the Rehabilitation Act of 1973, which
prohibit discrimination against qualified individuals with
disabilities who work in the federal government; and
- the Civil Rights Act of 1991, which, among other things, provides
monetary damages in cases of intentional employment discrimination.
II. What Discriminatory Practices Are Prohibited by These Laws?
Under Title VII, the ADA, and the ADEA, it is illegal to discriminate
in any aspect of employment, including:
- hiring and firing;
- compensation, assignment, or classification of employees;
- transfer, promotion, layoff, or recall;
- job advertisements;
- recruitment;
- testing; <-- NOTE that this does not mean an employer can NOT do
testing; it means that an employer can not use these tests in a
discriminatory way. NOTE also that using aptitude or skills testing to
identify the best-qualified candidates for a job would not ordinarily
be considered discriminatory UNLESS the tests themselves show bias in
the above-mentioned prohibited areas.
- use of company facilities;
- training and apprenticeship programs;
- fringe benefits;
- pay, retirement plans, and disability leave; or
- other terms and conditions of employment.
Discriminatory practices under these laws also include:
- harassment on the basis of race, color, religion, sex, national
origin, disability, or age;
- retaliation against an individual for filing a charge of
discrimination, participating in an investigation, or opposing
discriminatory practices;
- employment decisions based on stereotypes or assumptions about the
abilities, traits, or performance of individuals of a certain sex,
race, age, religion, or ethnic group, or individuals with
disabilities; and
- denying employment opportunities to a person because of marriage to,
or association with, an individual of a particular race, religion,
national origin, or an individual with a disability.
Title VII also prohibits discrimination because of participation in
schools or places of worship associated with a particular racial,
ethnic, or religious group."
NOTE that this page also points out that an employer or employment
agency requiring aptitude tests makes sure that the testing methods
and facilities are accessible to those with disabilities:
"How does the ADA apply to the administration of pre-employment tests
in the contingent work setting? (Question 12)
A staffing firm and a client must make reasonable accommodations so
that individuals with disabilities can take any tests they administer
directly or at the other entity's direction. Also, a staffing firm and
its client may not use tests results to screen out individuals from
employment on the basis of disability, unless use of the test results
is job-related and consistent with business necessity. Finally, if the
staffing firm or its client knows that the other entity is
discriminating with respect to pre-employment testing, then it must
take corrective action within its control in order to avoid liability
under the ADA."
Michigan Law
(1) Forbids an employer or employment agency to require an applicant
to take a polygraph test;
(2) Forbids an employer or employment agency to discriminate against
an applicant on the basis of disability; and
(3) Forbids an employer or employment agency to discriminate against
an applicant on the basis of religion, race, color, national origin,
age, sex, height, weight, or marital status.
**************************************
Thus, it does not forbid employers to require applicants to take
aptitude tests. HOWEVER, the employer needs to be certain that any
such tests it administers do not discriminate in the above areas.
**************************************
(Thanks to Researcher expertlaw-ga for his assistance; his statements
are seen here in quotes)
In the 1971 Supreme Court case mentioned in your Encarta article,
"Griggs v Duke Power Co., it was alleged that the intelligence testing
was not about job qualification, but was meant to exclude minority
applicants from the candidate pool in violation of federal civil
rights law."
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=401&page=424
While "the rule of Griggs has been somewhat relaxed over the years in
its application", you will need to be very sure that any aptitude
tests you administer have been vetted and are tried-and-true by HR
departments and legal sources as not being discriminatory.
**************************************
Because of Griggs and other cases alleging that IQ tests are
discriminatory because persons from specific cultural and financial
backgrounds do much better on them, straight IQ tests are probably in
a fuzzy gray area here; you will be much better off finding aptitude
tests that measure specific skills required by the job in question,
such as math; English, spelling, and grammar; keyboarding skills;
computer programming language(s); technical expertise terms and
procedures, etc.
If you decide to go ahead with your consulting business, you will want
to be sure to avail yourself of (tax-deductible) legal advice from an
attorney specializing in employment law.
**************************************
------------------------------------
MICHIGAN OCCUPATIONAL CODE (EXCERPT)
Act 299 of 1980
339.1004 Employment or consulting agent; license required;
requirements for issuance; operating independently.
Sec. 1004.
(1) An individual shall not operate as an employment agent or
consulting agent in this state without first obtaining the appropriate
license from the department. A personnel agency and its employment
agent and consulting agent shall be jointly and severally responsible
for the actions of a person employed by the personnel agency.
(2) The department shall issue an employment agent license or
consulting agent license to an individual who complies with all of the
following requirements:
(a) Successfully completes a written examination which tests the
knowledge of this article, the rules promulgated under this article,
the laws against discrimination in employment, and other laws
pertinent to serving as an employment agent or consulting agent.
(b) Is of good moral character.
(c) Is at least 18 years of age.
(3) An employment agent or a consulting agent shall not operate
independently of a type A personnel agency or a type B personnel
agency, as is appropriate.
History: 1980, Act 299, Imd. Eff. Oct. 21, 1980 ;--Am. 1992, Act 253,
Imd. Eff. Nov. 19, 1992 .
Popular Name: Act 299
http://www.michiganlegislature.org/mileg.asp?page=getObject&objName=mcl-339-1004
------------------------------------
MICHIGAN COMPILED LAW
http://www.michiganlegislature.org/mileg.asp?page=chapterindex
------------------------------------
as relates to Employment:
------------------------------------
(1) Forbids an employer or employment agency to require an applicant
to take a polygraph test:
POLYGRAPH PROTECTION ACT OF 1981 (EXCERPT)
Act 44 of 1982
37.203 Employer or employment agency; prohibited conduct; voluntary
request for examination by employee; requirements and prohibitions.
Sec. 3.
(1) Except as provided in this section, an employer or employment
agency shall not as a condition of employment , promotion, or change
in status of employment , or as an express or implied condition of a
benefit or privilege of employment , do any of the following:
(a) Request or require that an employee or applicant for employment
take or submit to a polygraph examination.
(b) Administer, cause to be administered, threaten to administer, or
attempt to administer a polygraph examination to an employee or
applicant for employment .
(c) Require that an employee or applicant for employment give an
express or implied waiver of a practice prohibited by this act or
section 19 of Act No. 295 of the Public Acts of 1972, as amended,
being section 338.1719 of the Michigan Compiled Laws...
History: 1982, Act 44, Eff. Mar. 30, 1983 .
http://www.michiganlegislature.org/mileg.asp?page=getObject&objName=mcl-37-203
------------------------------------
(2) Forbids an employer or employment agency to discriminate against
an applicant on the basis of disability:
PERSONS WITH DISABILITIES CIVIL RIGHTS ACT (EXCERPT)
Act 220 of 1976
37.1102 Opportunity guaranteed; civil right; accommodation of person
with disability; undue hardship.
Sec. 102.
(1) The opportunity to obtain employment , housing, and other real
estate and full and equal utilization of public accommodations, public
services, and educational facilities without discrimination because of
a disability is guaranteed by this act and is a civil right.
(2) Except as otherwise provided in article 2, a person shall
accommodate a person with a disability for purposes of employment ,
public accommodation, public service, education, or housing unless the
person demonstrates that the accommodation would impose an undue
hardship.
History: 1976, Act 220, Eff. Mar. 31, 1977 ;--Am. 1980, Act 478, Imd.
Eff. Jan. 20, 1981 ;--Am. 1990, Act 121, Imd. Eff. June 25, 1990
;--Am. 1998, Act 20, Imd. Eff. Mar. 12, 1998 .
http://www.michiganlegislature.org/mileg.asp?page=getObject&objName=mcl-37-1102
37.1202 Employer; prohibited conduct; exceptions; access to genetic
information.
Sec. 202.
(1) Except as otherwise required by federal law, an employer shall
not:
(a) Fail or refuse to hire, recruit, or promote an individual because
of a disability or genetic information that is unrelated to the
individual's ability to perform the duties of a particular job or
position...
http://www.michiganlegislature.org/mileg.asp?page=getObject&objName=mcl-37-1202
37.1203 Employment agency; prohibited conduct.
Sec. 203.
An employment agency shall not fail or refuse to refer for employment
, or otherwise discriminate against an individual because of a
disability or classify or refer for employment an individual on the
basis of a disability that is unrelated to the individual's ability to
perform the duties of a particular job or position.
History: 1976, Act 220, Eff. Mar. 31, 1977 ;--Am. 1998, Act 20, Imd.
Eff. Mar. 12, 1998 .
http://www.michiganlegislature.org/mileg.asp?page=getObject&objName=mcl-37-1203
------------------------------------
(3) Forbids an employer or employment agency to discriminate against
an applicant on the basis of religion, race, color, national origin,
age, sex, height, weight, or marital status:
ELLIOTT-LARSEN CIVIL RIGHTS ACT (EXCERPT)
Act 453 of 1976
37.2202 Employer; prohibited practices; construction;
nonapplicability.
Sec. 202.
(1) An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise
discriminate against an individual with respect to employment ,
compensation, or a term, condition, or privilege of employment ,
because of religion, race, color, national origin, age, sex, height,
weight, or marital status.
(b) Limit, segregate, or classify an employee or applicant for
employment in a way that deprives or tends to deprive the employee or
applicant of an employment opportunity, or otherwise adversely affects
the status of an employee or applicant because of religion, race,
color, national origin, age, sex, height, weight, or marital status.
http://www.michiganlegislature.org/mileg.asp?page=getObject&objName=mcl-37-2202
37.2205 Employer, labor organization, or joint labor-management
committee; training programs; prohibited practices.
Sec. 205.
An employer, labor organization, or joint labor-management committee
controlling an apprenticeship, on the job, or other training or
retraining program, shall not discriminate against an individual
because of religion, race, color, national origin, age, sex, height,
weight, or marital status, in admission to, or employment or
continuation in, a program established to provide apprenticeship on
the job, or other training or retraining.
History: 1976, Act 453, Eff. Mar. 31, 1977 .
http://www.michiganlegislature.org/mileg.asp?page=getObject&objName=mcl-37-2205
------------------------------------
Search Strategy
michigan employment laws
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Clarification, and I will be glad to see what I can do to help you
out.
I hope this Answer provides you with exactly the information you
needed!
Regards,
aceresearcher |
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