Unintended Consequences Of Equal Employment Opportunity: Unequal Parties In The Selection Process?

Abstract

There are various regulations that are intended to promote equal employment opportunity and avoid illegal discrimination in the employment process. These regulations determine what information employers may seek, and require that information sought be job-related or it is illegal to seek such information as age, marital status, or religion. Information that is not a bona fide occupational qualification (BFOQ) is usually out of bounds as employers gather information to determine the suitability of applicants for employment. Since one of the bedrock laws affecting the employment relationship is the “at will” doctrine that assumes both employer and applicant come together as equal partners in the formation of the employment contract, this paper raises the issues about whether such regulations unintentionally leave the employer at an information disadvantage by negating the concept of equality assumed by the “at will” doctrine. Some suggestions for practical ways of reducing the identified employer information disadvantages are provided.