Eeoc V. Consolidated Service System Summary

Case:
EEOC v. Consolidated Service System, 989 F.2d 233 (Cir. 1993), as cited by Bennett-Alexander, D.D. and Hartman, L. P. (2014) at 195.
1. If the court in Consolidated ruled that, even though the statistics told another story, there was no evidence of “intentional” discrimination, would unbalanced workforce due to word-of-mouth recruiting alone ever constitute disparate treatment?
No, word-of-mouth recruiting alone would not constitute disparate treatment. In order for it to be considered disparate treatment, the employer’s intention to discriminate must be proven, which in this case was not proven. Hwang simply used word-of-mouth since it was the most efficient method of recruiting for his small firm. A similar situation was seen in the case of EEOC v. Chicago Miniature Lamp Works 947 F.2d 292 (7th Cir. 1991), as cited by Bennett-Alexander at 143-144, in which the EEOC claimed that Chicago Miniature Lamp Works discriminated against blacks in it hiring through a word-of-mouth process. The court dismissed the treatment claim because it required intent, which was not proven.
2. Consider your and the court’s response to the above question. Would your decision be different if it could be shown that, in a certain small,

all-white firm, recruiting was done only using word of mouth and this effort resulted in only white applicants. Would your decision remain the same?
No, because in this case it would not be cheaper to hire a white employee than an employee of a different race, and the firm can use other cost efficient methods of advertising other than word-of-mouth, such as placing on their website or in a local paper. However, for it to be considered disparate treatment, it must be proven that it was the firm’s intention to use the word-of-mouth to result in a homogenous set of applicants. Also, the firm must make sure it attracts some diverse applicants to avoid a case of disparate impact

3. If the case where tried as a disparate impact case, as discussed by the court, how would you balance the advantages of word-of-mouth recruiting against the possibility of a discriminatory impact?

In the case of EEOC v. Consolidated Service System, the advantages of using word-of-mouth recruiting were because it was the least costly method of recruiting, which was ideal for such a small firm. In addition the fact that it leading to more Korean applicants was ideal for them since it resulted in cheaper labor for the firm. However, I would still suggest that the firm broaden its search to attract a more diverse applicants to avoid a potential disparate impact case.
Chapter End Questions
Chapter 4:
4. Was Walmart liable for negligent hiring?
Yes, I think Walmart is liable for negligent hiring.

As cited by Bennett-Alexander at 148, negligent hiring is the employment of a person who caused harm and could have been prevented had the employer conducted a background check on the employee. In this case, Walmart did not have a policy in place that required a criminal background check for its employees at the time of hiring, which is irresponsible considering that it is the employee’s responsibility to ensure that there is no information that if discovered would put other employees and customers at risk. Given that Randall would be interacting with other employees and customers, Walmart should have conducted a background check on its employees to ensure the safety of its employees and

customers.
Chapter 5:
4. If so, may it only be used to remedy identified past discrimination? Discuss.
No, it may be used for other reasons as well. As cited by Bennett- Alexander at 222, in addition to affirmative action arising judicially as a remedy discrimination under Title VII, it may arise through Executive Order 11246, and by voluntary affirmative action established by the employer. That is, employers may lawfully consider race or gender when making hiring or promotion decision if it is through Executive Order 11246, or if the employer chooses to have an affirmative action plan as a proactive measure to avoid discrimination claims, however, certain factors must be present in order to justify the plan to court and to avoid reverse discrimination.