From: stephen@sprunk.org   
      
   On 15-Sep-15 12:07, Bolwerk wrote:   
   > On 09/15/2015 11:43 AM, Stephen Sprunk wrote:   
   >> On 14-Sep-15 14:08, Bolwerk wrote:   
   >>> I'm kind of surprised it passed legal muster given American   
   >>> hiring laws are actually pretty strict about requiring cause for   
   >>> not selecting someone.   
   >>   
   >> No, they're not; absent a contract (e.g. a collective bargaining   
   >> agreement) that says otherwise, there is no requirement that the   
   >> employer show or even _have_ cause to not hire (or to fire)   
   >> someone.   
   >   
   > You're right in theory, but in practice yes they are.  An employer   
   > had best be able to prove disparate treatment wasn't a factor.   
      
   It rarely makes business sense to fire someone without any cause at all   
   since replacing them costs money.  So, assuming you do have a cause,   
   just have to show that it's not a discriminatory one, and their case   
   against you evaporates.   
      
   The more typical case is when the employer claims that the cause was one   
   thing but the employee claims it was another.  Absent a solid track   
   record of such claims or in a few idiotic cases, actual written policy   
   encouraging discrimination, that's tough to prove.   
      
   > That's why rejection wording is so vague and unhelpful.  The hiring   
   > firm wants to leave no recourse to a rejected applicant.   
      
   Of course; that's standard CYA.   
      
   >>> It's one thing if you're hiring someone with some fiduciary   
   >>> responsibility, but overall it doesn't make sense.  It's   
   >>> discrimatory and has a clear abject impact.   
   >>   
   >> AFAIK, employment is still under the "discriminatory intent"   
   >> regime rather than the "disparate impact" regime.   
   >   
   > As far as that goes, AIUI, discriminatory employment plaintiffs must   
   > show both abject impact and disparate treatment.  The burden to   
   > prove the former is squarely on the plaintiff, but the defendant must   
   > (at least in practice) offer a record demonstrating absense of   
   > disparate treatment in hiring.   
      
   From what I've seen, unless the employer is stupid enough to admit to   
   unlawful discrimination or there's clear evidence of a hostile work   
   environment for similar reasons, such cases rarely succeed.   
      
   > Abject impacts can be legal.  And discrimination without an abject   
   > impact probably isn't enough to cause a problem, at least not for   
   > the person who benefits.  How could I sue you because you hired me   
   > because I was black?  I gained from the disparate treatment.   
      
   Of course.   
      
   >>>> They don't have that here in the United Kingdom, I note.   
   >>>   
   >>> Might make sense for transit. :-p   
   >>   
   >> For jobs where being high can put others (especially the public)   
   >> at physical risk, that sounds reasonable, except drugs are   
   >> detectable in blood or urine long after their effect wears off.   
   >> Should we care that someone drinks, smokes, pops pills or shoots up   
   >> on their days off as long as they're sober when they're working?   
   >   
   > Might depend on the drug.  Whether a given drug, regularly consumed,   
   > impairs cognitition over the long term shouldn't be that hard to   
   > demonstrate.   
      
   If they are physically or mentally impaired, then fire them for that,   
   whether they are currently high or not.   
      
   >> If they're not sober, should we care what particular drug they're   
   >> under the influence of? There are many legal drugs that can impair   
   >> job performance but are either not detected or ignored in standard   
   >> drug tests, and many legal drugs are indistinguishable from   
   >> illegal ones.   
   >   
   > Yeah, sure, there is the question of medical need too.  I can't think   
   > of many circumstances where the use of a drug test is justifiable,   
   > but there are probably some.  Driving a bus would probably be on my   
   > list.   
      
   Sure; public/commercial transportation is the standard example.   
      
   OTOH, the same blood/urine levels of a drug can have drastically   
   different effects due to body chemistry and tolerance.  For instance, a   
   given dose of opiates could reduce impairment (due to pain) in one   
   person but increase impairment (due to drowsiness) in another.   
      
   IOW, the tests aren't even measuring the right thing.   
      
   S   
      
   --   
   Stephen Sprunk         "God does not play dice."  --Albert Einstein   
   CCIE #3723         "God is an inveterate gambler, and He throws the   
   K5SSS        dice at every possible opportunity." --Stephen Hawking   
      
   --- SoupGate-Win32 v1.05   
    * Origin: you cannot sedate... all the things you hate (1:229/2)