However, as Nick is unqualified for the position, the medical question is moot -- Nick would not be hired because he has no experience.
Michelle has some past experience and would be under consideration. Under the terms of the Pregnancy Discrimination Act prohibits discrimination on the basis of pregnancy in employment. The Act does not explicitly prohibit Mei-Lin from inquiring about the pregnancy, but it is recommended that she refrain from doing so, as that inquiry could be used against the company in a discrimination suit should Michelle not be hired. Although ethics are not encompassed in the law, from an ethical point-of-view it would be irresponsible for SureBuild to hire Michelle, as working as a jackhammer operator would put the fetus at risk, there could be legal action taken against the company as a result for failing to provide the fetus with adequate duty of care.
Eric is experienced, but technically does not meet all of the qualifications for the job. A minimum level of education is allowable as a means of excluding a candidate from employment. Therefore, the company can exclude Eric on the basis of inadequate education. The Age Discrimination Act of 1975 only precludes age discrimination from companies that receive federal financial assistance, which is not the case with SureBuild (USDL, 2010). So technically, the company could discriminate against Eric on the basis of age.
Felipe is experienced, but does not meet two of the qualifications. Language and education are both allowable as reasons to exclude somebody from employment. Ethnicity is not -- if Felipe could speak English his being a native Spanish-speaker could not be held against him. However, it should be noted that the company does not have to discriminate against Felipe -- if the site has many Spanish speakers, and especially a Spanish-speaking foreman, Felipe's language skills may not be a barrier to his ability to perform the job.
From a legal perspective, Eric, Felipe and Nick can all be excluded from this...
Mei-Lin cannot exclude Michelle on the basis of her pregnancy. However, with the exception of Nick all of the candidates have abilities with the jackhammer. The company should hire the most proficient with the jackhammer. However, it should be noted there that is some
risk in hiring either Eric or Felipe because they do not meet all of the qualifications while Michelle does. The company could face a discrimination suit. The merits of that suit would be weighed in court, but Michelle could have a case that she was the most qualified person for the job and was ipso facto the victim of discrimination if she does not get the job. The company can still claim that she was unable to perform the basic functions of the job, which is a claim best left for medical experts and the courts -- she can do the job but at risk to her fetus. The other
scenario would be to hire either Felipe or Eric and make the
employment conditional on meeting the job's requirements. Either one of them could gain a high school equivalency, and in the event that Felipe needs to learn English then he could also have a time frame for gaining proficiency. The risk with Felipe is that his lack of English could endanger others on the site, which makes Eric with employment conditional on gaining a diploma as the best recommendation for Mei-Lin.
Works Cited:
All Business. (2010). How should you
structure your business? All Business. Retrieved October 30, 2010 from http://www.allbusiness.com/business-planning/business-structures-limited-liability/1679-1.html
ADA.gov. (2005). A guide to
disability rights laws. U.S. Department of
Justice. Retrieved October 30, 2010 from http://www.ada.gov/cguide.htm#anchor62335
Pregnancy Discrimination Act (1978). Retrieved October 30, 2010 from http://employment.findlaw.com/employment/employment-employee-discrimination-harassment/employment-employee-pregnancy-discrimination-top/pregnancy-discrimination-act.html
USDL. (2010). Age discrimination act of 1975. U.S. Department of Labor. Retrieved October 30, 2010 from http://www.dol.gov/oasam/regs/statutes/age_act.htm
