After Title VII was passed, concerns remained that tests were being used in industry that functioned to limit the opportunities for minorities to gain.

After Title VII was passed, concerns remained that tests were being used in industry that functioned to limit the opportunities for minorities to gain employment

Such concerns were fostered by the exemption in the language contained within Title VII regarding the use of psychological tests:

Adverse Impact Background

“…nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.”

EEOC Statement (1966) regarding professionally developed tests:

The Commission accordingly interprets “professionally developed ability tests” to mean a test which fairly measures the knowledge or skills required by the particular job or class of jobs which the applicant seeks, … The fact that a test was prepared by an individual or organization claiming expertise in test preparation does not, without more, justify its use within the meaning of Title VII.” (35 Fed. Reg. 12333).

Griggs v. Duke Power (1971)

• Can employment practices be in violation of Title VII if there is a lack of discriminatory intent?

• Can evidence that a practice disproportionately excludes members of a protected group be used to form a prima facie case?

• What standard/evidence must exist to defend the use of devices used for personnel decisions (e.g., selection, promotion)?

Key Questions:

Duke Power organized into 5 departments:

1) Labor (Blacks limited to these jobs; highest pay here was less than the lowest wage in the other departments) 2) Coal Handling3) Operations4) Maintenance5) Laboratory & Test

Promotions made on the basis of seniority within each departmentDuke Power incrementally began adding requirements:

1955: company required a HS diploma for jobs within each department, except Labor

1965: Company a HS diploma was required to transfer from the Labor Dept. (*White employees hired before HS requirement performed satisfactorily; not debated)

Later in 1965: Required passing scores on 2 “aptitude tests” (passing score approximated the national average . for HS students)

Griggs Background

Company’s Promotion Requirements (Facially neutral)

1) Pass the Wonderlic Personnel Test and Bennett Mechanical Aptitude Test

2) Possess a high school diploma

Challengers provided evidence that the requirements disproportionately excluded protected group members (i.e.,

Blacks)

Tests eliminated roughly 94% of blacks as compared to 43% of whites.

12% of Blacks possessed a high school diploma in NC versus 34% of Whites

Griggs v. Duke Power (1971)

Company defense: Argued that the use of "professionally developed tests" was allowed under Title VII (technically correct)

Company also said that they did not intend to discriminate against protected group members by mandating their requirements (tests and diploma)

Griggs v. Duke Power (cont.)

From the SC decision: “… Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.”

“… The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.”

• Employment discrimination may result from the effects of one's actions

Major Points of the Supreme Court Decision in Griggs

• All tests/requirements must be job related and consistent with business necessity

• Proof of an intention to discriminate is not required for discrimination to exist

• All tests must meet standard professional guidelines for psychometric worth

~ Albemarle Paper v. Moody (1975) ~

Albemarle’s Testing Requirements:

Why use the Wonderlic?

No attempt to ascertain the job-relatedness of the Wonderlic

No rationale for the use of the its cutoff score (national norm) for passing

... selected based on” the theory that a certain verbal intelligence was called for by the increasing sophistication of the plant's operations.”

Pass the Beta Exam (a test of nonverbal intelligence) and the Wonderlic Test

• A few months before the trial, Albemarle hired a consultant to validate its tests

• 10 job groupings, 9 lines of progression (sample consisted of those near the top of the progression lines --- 105 employees; 4 Blacks)

• Use of concurrent validation approach (test scores correlated with supervisor rankings (pair comparisons)

• Instructions to supervisors regarding asessing the performance of their subordinates: "determine which ones they felt irrespective of the job that they were actually doing, but in their respective jobs, did a better job than the person they were rating against . . .

~ Albemarle’s Validation Study ~

Findings --- A “patchwork” of correlations

Beta Exam: Significant correlations in 3 out of the 8 lines of progression

Wonderlic: Significant correlations for one form (not the other) obtained in 4 job groups

No significant correlations obtained in 2 groups; tests significant within some lines of progression but not others

>>> Test scores were correlated (rather haphazardly) with job performance measures across several job categories, but no evidence existed showing that the jobs were comparable

There is no way of knowing precisely what criteria of job performance the supervisors were considering, ...

>>> Subjective supervisor evaluations of employees were based on unclear performance criteria (e.g., supervisors were asked to assess which workers, regardless of job category, were better than the individual to which they were being compared)

“The study in this case involved no analysis of the attributes of, or the particular skills needed in, the studied job groups. There is accordingly no basis for concluding that "no significant differences" exist among the lines of progression, or among distinct job groupings within the studied lines of progression. Indeed, the study's checkered results appear to compel the opposite conclusion.”

Albemarle --- Summary of Key Points

>>> The sample used in the validation study was heavily comprised of those who were white, in upper-level positions, and who had greater years of experience, than the typical job applicant for whom the tests were being administered

Albemarle's validation study dealt only with job-experienced, white workers; but the tests themselves are given to new job applicants, who are younger, largely inexperienced, and in many instances nonwhite. The APA Standards state that it is "essential" that "[t]he validity of a test should be determined on subjects who are at the age or in the same educational or vocational situation as the persons for whom the test is recommended in practice."

Albemarle --- Summary of Key Points (cont.)

Step 1: The challenger must identify a specific employment practice that caused the discrimination in question (disproportionately excludes protected group members)

Step 2: The company must demonstrate that the challenged practice is job related and consistent with business necessity

Step 3: The challenger must prove that an equally valid, job-related practice exists with less (or no) adverse impact

~ Adverse Impact Process Before Wards Cove ~

~ Connecticut v. Teal (1982) ~["bottom line" defense]

Background?

Black candidates who failed the exam sued, saying that the test was unrelated to the job and resulted in adverse impact

% of Blacks who passed the test was 54% compared to 79% for whites (or a passing rate for blacks that was 68% less than that of whites). Clear violation of the 4/5 rule. But, 22.9% of Blacks were promoted vs. 13.5% of Whites*

* Promotion decisions were made about a year after the suit was filed and about 30 days before the trial.

• State required the passing of a written test for promotion • Those who passed the test were placed on a list indicating that they were eligible for future promotion consideration• Once on the list, other factors were evaluated in making promotion decisions such as supervisor recommendations, work performance, and job tenure.

Connecticut’s position:

Connecticut said they were in compliance with the Uniform Guidelines. That is, 1607.4(C) of the Uniform Guidelines states:

[1] If … the total selection process for a job has an adverse impact, the individual components of the selection process should be evaluated for adverse impact.

[2] If … the total selection process does not have an adverse impact,the Federal enforcement agencies … will not expect a user to evaluatethe individual components for adverse impact, or to validate suchindividual components, and will not take enforcement action basedupon adverse impact in any component of that process

• "Title VII does not permit the victim of a facially discriminatory policy to be told that he has been wronged because other persons in his or her race or sex were hired.” … Every individual employee is protected against both discriminatory treatment [457 U.S. 440, 456]   and "practices that are fair in form, but discriminatory in operation. ... In sum, petitioners' nondiscriminatory "bottom line" is no answer, under the terms of Title VII, to respondents' prima facie claim of employment discrimination.

• It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employee’s group

Court decided in favor of the plaintiffs. It concluded that the law protects individual employees and that discrimination can exist even though the group as a whole fared well

~ Supreme Court Decision in Teal ~

Watson v. Ft. Worth Bank and Trust

Background of case?

Watson v. Ft. Worth Bank and TrustKey Points:

A) Plaintiffs do NOT need to show intentional discrimination with regard to subjective information used for employment decisions. That is, subjective information needs to comply with the requirement set forth in Griggs regarding job-relatedness.

When an employer's "...undisciplined system of subjective decision-making has precisely the same effects as a system perverted by intentional discrimination, it is difficult to see why Title VII" should not apply"

Therefore, subjective employment practices can be challenged under disparate impact rule

B) A statistical difference may not be enough to establish a prima facie

case

C) Majority of the Court required the plaintiff to identify the SPECIFIC

employment practice that CAUSED the statistical disparity between "protected" and "unprotected" group

D) Plurality lessened the burden of proof on the part of the company in

demonstrating business necessity to that of production

The Plurality Opinion in Watson (Justice O’Conner)

"Our cases make it clear that employers are not required, even when defending standardized or objective tests, to introduce formal 'validation studies' showing that particular criteria predict actual on-the-job performance"

"...formal validation techniques endorsed by the EEOC in its Uniform Guidelines may sometimes not be effective in measuring the job-relatedness of subjective selection procedures"

"...It is self-evident that many jobs, for example those involving managerial responsibilities, require personal qualities that have never been considered amenable to standardized testing...courts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress, they should not attempt it"

Watson v. Ft. Worth Bank and Trust (cont.)

Not true; objective and subjective data require the same psychometric rigor

Selection Methods Amendable to Validation Studies (SIOP Principles)

* Underlined factors were challenged by Watson

Ward’s Cove: • Salmon cannery company• Operates only in summer• Location of salmon runs vary as does the number of employees in each site

Two general types of jobs 1) Cannery (mostly minority, hired via a union, live near job sites)2) Noncannery (skilled position, mostly White, higher paid)

Separate facilities for each job category

Wards Cove v. Antonio (1989)

Basic facts/background?

Wards Cove v. Antonio

Key Points:

Evidence for adverse impact is useable to demonstrate a prima facie case (both lower courts rejected a disparate treatment claim)

What comparison is allowed to show disparate impact?

Plaintiffs used cross-job disparities to form a prima facie case (similar to Teamsters):

% minorities in unskilled skilled vs. % nonminorities in skilled jobs

Supreme Court Decision in Wards Cove

A) Proper statistical comparison is:

• Racial composition of those in the noncannery jobs with those in the "relevant" labor market who are qualified and have an interest in performing the job(s) in question (e.g., Teamsters-Hazelwood)• Here, % majority vs. % minority in skilled jobs

Discrepancies due to differences in hiring procedures (e.g., nepotism, word of mouth recruiting, walk-ins, vague hiring criteria)

• Why not consider Wards Cove as a disparate treatment case (i.e., pattern or practice)

• In Wards Cove, Justice White cited Hazelwood as the prime example of adverse impact ----- WRONG!

• In Wards Cove, the Court did not even mention Griggs or any other adverse impact case!

Adverse Impact or Disparate Treatment???

Note: Recruitment is NOT considered to be a selection procedure (e.g., Uniform Guidelines). Recruitment, specifically passive recruitment practices, were the reason for the disparities in Wards Cove

B) Plaintiff must identify specific employment practice that caused the statistical disparity (consistent with plurality in Watson v. Ft. Worth Bank, 1989)

"Here, respondents have alleged that several "objective"

employment practices (e.g., nepotism, separate hiring channels, rehire preferences), as well as the use of 'subjective decision making' to select non-cannery workers had a disparate impact on non-whites...Respondents will... have to demonstrate that the disparity they complain of is the result of one or more of the employment practices that they are attacking here, specifically showing that each challenged practice has a significant disparate impact on employment opportunities."

Wards Cove v. Antonio (cont.)

C) Company recordkeeping responsibility

"...employers...are required to maintain...records or other information which will disclose the impact which its tests and other procedures have upon employment opportunities or persons by identifiable race, sex, or other ethnic groups...This includes records concerning 'the individual components of the selection process' where a statistical disparity in the selection rates of whites and nonwhites...Plaintiffs as a general matter will have the benefit of these tools to meet their burden of showing a causal link between challenged employment practices and racial imbalances in the workforce..."

D) Burden of Proof

Regarding earlier court opinions on this issue: "...they should have been understood to mean an employer's production -- but not persuasion burden."

Faced with a prima facie case the employer may now "articulate" rather than "prove" that it had a legitimate business reason for its practice.

“The touchstone of this inquiry is a reasoned review of the employer’s justification for his use of the challenged practice ... there is no requirement that the challenged practice be ‘essential or indispensable‘ to the employer’s business for it to pass muster; this degree of scrutiny would be almost impossible for most employers to meet.”

Step 1: The challenger must identify a specific employment practice that caused the discrimination in question (disproportionately excludes protected group members)

Step 2: The company must demonstrate that the challenged practice is job related and consistent with business necessity

Wards Cove: The company must PRODUCE evidence (articulate -- not prove) that it had a legitimate reason for their employment practice

Step 3: The challenger must prove that an equally valid, job-related practice exists with less (or no) adverse impact

~ Adverse Impact Process After Wards Cove ~

Sec. 1607.5(A). Acceptable types of validity studies. For the purposes of satisfying these guidelines, users may rely upon criterion-related validity studies, content validity studies or construct validity studies, in accordance with the standards set forth in the technical standards of these guidelines, section 14 below. New strategies for showing the validity of selection procedures will be evaluated as they become accepted by the psychological profession. (TIP article on Guidelines review)Sec. 1607.C(1): A selection procedure based on inferences about mental processes cannot be supported solely or primarily on the basis of content validity. Thus, a content strategy is not appropriate for demonstrating the validity of selection procedures which purport to measure traits or constructs such as intelligence, aptitude, personality, common sense, judgment, leadership and spatial ability [emphasis by authors].

Uniform Guidelines

Most prefer a unitarian view of validity (any validity evidence, however it is collected, can support the job-relatedness of selection devices)

Use of content validity for rank ordering of candidates from Guardians v. Civil Service (1980) ---

1. Suitable job analysis2. Reasonable competence in test construction3. Test content related to job content4. Test content representative of job content5. Scoring systems selecting applicants who are better job performers

Q56: Why don't the Uniform Guidelines state a preference for criterion-related validity over content or construct validity?

A: Generally accepted principles of the psychological profession support the use of criterion-related, content or construct validity strategies as appropriate. American Psychological Association Standards, E, pp. 25-26. This use was recognized by the Supreme Court in Washington v. Davis, 426 U.S. 229, 247, fn. 13. Because the Guidelines describe the conditions under which each validity strategy is inappropriate, there is no reason to state a general preference for any one validity strategy.

Gillespie v. Wisconsin (1985)

On the rejection of preferences for criterion-related validity

Q62: Under what circumstances may a selection procedure be used for ranking?

A: … Use of a selection procedure on a ranking basis may be supported by content validity if there is evidence from job analysis or other empirical data that what is measured by the selection procedure is associated with differences in levels of job performance. Any conclusion that a content validated procedure is appropriate for ranking must rest on an inference that higher scores on the procedure are related to better job performance. The more closely and completely the selection procedure approximates the important work behaviors, the easier it is to make such an inference. Evidence that better performance on the procedure is related to greater productivity or to performance of behaviors of greater difficulty may also support such an inference.

Gillespie v. Wisconsin (1985; cont.)

Cutoff Scores

Lanning v. SEPTA (1999)

• Key issue was the use of an aerobic test for selecting transit authority police officers (run 1.5 miles with full gear under 12 minutes)

• Led to adverse impact for females

SEPTA did a job analysis demonstrating the importance of aerobic capacity to safety of officers and the public

SEPTA provided statistics showing a relationship between aerobic capacity and number of successful criminal arrest and commendations for field work

Uniform Guidelines on Selection Procedures (1978) Smaller differences in selection rate may nevertheless constitute adverse impact, where they are significant in both statistical and practical terms or where a user's actions have discouraged applicants disproportionately on grounds of race, sex, or ethnic group.

Greater differences in selection rate may not constitute adverse impact where the differences are based on small numbers and are not statistically significant, or where special recruiting or other programs cause the pool of minority or female candidates to be atypical of the normal pool of applicants from that group.

4/5 rule is a guideline, a rule of thumb

Courts have used other criteria (e.g., Bew v. Chicago, Isabel v. Memphis):

• Differences in mean test scores• Effect size (e.g., D statistic)• Differences in proportions of those selected (e.g., Z test)

~ Statistical Versus Practical Significance ~A disparity in selection rates exist between two

groups. Is this difference an indication of adverse impact?

In Stagi v. Amtrack (2010) the 3rd Circuit noted that increased numbers make it more likely to exclude chance as a cause of adverse impact. The court ruled that:

• Statistically significant results alone support causation • The 4/5th rule was not persuasive• There is no additional requirement of practical significance given the inference of causation

This combination of ideas almost implies that statistical significance is practical significance because a disparity is probably not due to chance.

Statistical significance tests generally assess the level of confidence a that a finding is not a chance event (e.g., Z test of independent proportions or Fisher’s exact test)

Practical significance measures generally assess the magnitudeor consequences of a finding (e.g., using 4/5th rule, odds ratio, Cohen’s h statistic)

From: Dunleavy. E. M., & Gutman, A. (2011). An Update on the Statistical Versus Practical Significance Debate: A Review of Stagi v. Amtrak (2010). The Industrial-Organizational Psychologist, 48(4), 121-130.

Most recent OFCCP settlements have emphasized disparities using statistical significance tests as standalone evidence.

This two-hurdle process has NOT been observed in recent case law concerning impact measurement.

Why not a 2-stage process in determining adverse impact?

Step 1: A statistical significance test would as the 1st “hurdle supporting that a disparity is probably not due to chance.

Step 2: Evidence that a non-chance disparity is substantial enough in size to support a reasonable inference of discrimination

Advice From a Technical Advisory Committee

(Created to help provide the assessment and equal employment opportunity (EEO) communities with technical “best practice” guidance on how to conduct adverse impact analyses and included 70 of the nation’s experts in adverse impact analyses. Available at: http://cceq.org/

• Multiple methods of adverse impact detection should be used. However, care should be taken to minimize redundancy and combine only methods that each add unique information.

• Practical significance should be considered, and a variety of effect sizes may be useful measures. Practical significance measures should be paired with a statistical significance test.

Use of Multiple Selection Components

Need to specify:

• How each “test” is scored

• How each score is combined

• If applicants are eliminated by any single score functioning as a minimum qualification

Avoid doing what was done in the Watson case!