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Bryan BaldwinState of Washington
Department of PersonnelMay 3, 2006
Creating DefensibleSelection Procedures
IPMA-HR Western Region Annual Training Conference
22
Overview/Objectives
By the end of today, you will know:1. What hiring practices can be challenged.2. What you are defending against.3. What the relevant laws are.4. What is meant by “validity.”5. Why we should care about good selection.6. What you can do to help ensure defensibility.
Defensible Selection
33
“Selection Procedure”
• Uniform Guidelines on Employee Selection Procedures:
• “Employment decisions include but are not limited to hiring, promotion, demotion, membership…referral, retention, and licensing and certification…Other selection decisions, such as selection for training or transfer, may also be considered employment decisions…”
• Connecticut v. Teal (1982)
• Professional guidance• APA Standards• SIOP Principles
• Bottom line: Anything that narrows the talent pool
Defensible Selection
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Why do we spend so much time on assessment?
• Increases productivity of workforce• Helps prevent errors from being made• Increases employee satisfaction and reduces
turnover• Better fit• Processes are more consistent and fair
• Improves organization’s reputation• More attractive as employer
• Helps ensure we treat people fairly
Defensible Selection
55
“Many lawyers think of test validation studies as just a bunch of paperwork that benefits no one but the psychologists…The cost of test validation is normally insignificant compared to the benefits received, and these benefits continue for each year that the test is used—and beyond, to the extent that employees selected by the test remain on the job.”
- Seberhagen (1990)
Defensible Selection
It’s not just about defensibility
66
What are we defending against?
1. Discrimination complaints Disparate treatment Disparate/adverse impact
2. Privacy violations
3. Improper medical tests
4. Negligent hiring/failure to perform due diligence
5. Violations of merit system rules
6. Violations of bargaining contracts
Defensible Selection
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“Defensible”
• Withstands scrutiny from:• Applicants/candidates• Peers• Union representatives• Regulatory agencies• Attorneys• Jury• Judge
• Something you could stand behind• Something you wouldn’t mind seeing in the paper
Defensible Selection
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The Laws
1. Title VII2. Section 1981/19833. ADEA4. ADA and Rehabilitation Act5. USERRA and VEVRAA6. FCRA7. Immigration Reform and Control Act8. Executive Order 112469. State and local laws10. Employment torts
Defensible Selection
99
Regulatory Agencies
1. Equal Employment Opportunity Commission (EEOC)2. U.S. Department of Justice (DOJ)3. U.S. Department of Labor (DOL)
• OFCCP• VETS
4. Federal Trade Commission (FTC)5. U.S. Department of Homeland Security6. State agencies, for example:
• California Department of Fair Employment and Housing• Washington Human Rights Commission• Oregon Bureau of Labor & Industries
7. Local agencies
Defensible Selection
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“Internet Applicants”
• New OFCCP regulations• Cover certain federal contractors• Require collection of demographic information• Require tracking of database searches• Require qualifications to be job-related• Should be thoroughly reviewed by covered employers
• Pending EEOC regulations (UGESP Q&A)• Will the final version mirror OFCCP regulations?• Applies to more employers
Defensible Selection
1111
Disparate Treatment
• Inconsistent/unfair application of policy or procedure
• Employer must give a job-related, legal reason why they did what they did
• Plaintiffs and judge/jury will look for any situations where you treated “similarly situated” individuals differently
• Serious liability for organization and, in some cases, the individual
Defensible Selection
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Disparate/Adverse Impact
• Policy/practice applied same way to all groups but has the effect of discriminating against some
• Classic examples: diplomas, height
• Common measure: “4/5ths rule”
• Employer must show selection process was job-related and consistent with business necessity
• Court/jury will look for evidence of validity per the Uniform Guidelines
Defensible Selection
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Exceptions
Defensible Selection
• Bona Fide Occupational Qualification (BFOQ)• Religion, sex, national origin, or age only
• Must be “reasonably necessary to the operation of that particular business or enterprise”
• Bona Fide Seniority System (BFSS)
• Affirmative Action Diversity can be a compelling interest AA must be narrowly tailored to achieve goals Race/ethnicity can be considered a “plus” only Can take many forms
1414
Why do applicants complain?
• They perceive a violation of Title VII of the federal Civil Rights Act of 1964 as amended in 1991
• The exam didn’t pass the smell test (wasn’t “face valid”)
• They feel they weren’t treated fairly• They’ve heard other applicants felt the same• They like to complain
Defensible Selection
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Procedural Justice
Procedural justice – the fairness of the process used to select applicants/new hires (not the result)
Studies have linked procedural justice to: Recommending the employer to others Perceptions of fairness Applicants’ intention to take a job Organizational attractiveness Turnover intentions Filing complaints
Defensible Selection
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Applicant Perceptions
Instrument Favorability Rating
Interviews Higher
Work sample
Resumes
References
Cognitive ability
Personality tests
Biodata
Honesty tests Lower
Source: Hausknecht et al. (2004)
Defensible Selection
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Sources of Validity
Uniform Guidelines: “The 3 C’s”: Relationship between scores and job performance
“Criterion-related validity” Test content matches job content
“Content validity” Test is measuring abstract concept (dependability)
“Construct validity”
Validity generalization
Defensible Selection
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“The closer the content and the context of the selection procedure are to work samples or work behaviors, the stronger is the basis for showing content validity. As the content of the selection procedure less resembles a work behavior…the less likely the selection procedure is to be content valid, and the greater the need for other evidence of validity.”
– Uniform Guidelines, 14(C)(4)
Validity Evidence
Defensible Selection
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Charges in 2005 (thousands)
Source: EEOC
56
16.6 15
0
10
20
30
40
50
60
70
Title VII ADEA ADA
Defensible Selection
2222Source: EEOC
2,340
8,035
14,893
16,585
23,094
26,740
0 10,000 20,000 30,000
Race/Color
Sex
Age
Disability
Nat. Orig.
Religion
2005 EEOC Charges Filed by Type
Defensible Selection
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1. Equitable relief• Hiring, reinstatement, back pay, legal fees, etc.• Adverse impact or disparate treatment
2. Legal relief• Compensatory damages, e.g., pain and suffering• Punitive damages: to punish the employer
• Available only against private sector employers• Available only in disparate treatment cases• May not be available for violating state laws (e.g., AZ)
3. Limits• Title VII, ADA, ADEA: see next slide• State laws vary (e.g., unlimited in CA civil case)• Section 1981 and 1983: unlimited
Potential Penalties
Defensible Selection
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# employeesMaximum compensatory & punitive
damages per complaining party
15 – 100 $ 50,000
101 – 200 $ 100,000
201 – 500 $ 200,000
> 500 $ 300,000
Title VII, ADA, and ADEA
Defensible Selection
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But validation is so expensive!
$$
$
$
$
$
$
Average cost of content validation: $5-20K
Median 2003 compensatory award in discrimination case:
$232K
Defensible Selection
Median settlement in discrimination case, ’96-’02:
$50-70K
Sources: Seberhagen (1990); Jury Verdict Research
2727
First…reality
• No selection system is perfect
• Someone can always complain
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How to Protect Yourself
1. Job analysis, job analysis, job analysis
“People will continue to measure the wrong things as long as they fail to define what they want to measure.”
- Guion (1998)
Defensible Selection
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Defensible Selection
Knowledge, Skills, and Abilities
Su
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Ap
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Wri
tten
Tes
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Ora
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terv
iew
In-B
aske
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xerc
ise
Wri
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xerc
ise
Ora
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on
Ref
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ce C
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Pro
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Ability to prepare clear, complete and concise reports.
X X X X X
Ability to apply accounting and auditing principles and procedures in the work performed.
X X X X X X X
Ability to analyze data and draw sound conclusions.
X X X X X X
KSA-Selection Method Matrix
3030
2. Use “good” exams
• Based on results of job analysis• Reliable• Valid• Structured• Free of obviously illegal questions• Weighted according to the job analysis• Bias for work sample/performance tests• Beware on-line tests—especially personality tests
Defensible Selection
3131Sources: Schmidt & Hunter (1998); Roth et al. (2005); Aamodt (1998); U.S. MSPB (2005)
Defensible Selection
0 100
Written tests
College GPA
References
Education level
Interviews
Work experience
What works?
Supervisors’ Opinion Validity
3232
Looking in the mirror
Source: Rynes et al. (2002)
Defensible Selection
Study of 959 HR professionals
Question Answer % Wrong
1. The most valid employment interviews are designed around each candidate’s unique background.
2. Although people use many different terms to describe personalities, there are really only four…as captured by the Myers-Briggs Type Indicator (MBTI).
5. Companies that screen job applicants for values have higher performance than those that screen for intelligence.
3. Being very intelligent is actually a disadvantage for performing well on a low-skilled job.
4. “Integrity tests” don’t work well in practice because so many people lie on them.
3333
Adverse Impact
Sources: Several, including Aamodt (2006), Roth et al. (2001), and Hough et al. (2001)
Defensible Selection
d-value
0 0.5 1 1.5 2
Integrity tests
Reference checks
Conscientiousness
Structured interview
Biodata
Situational jdgmt (video)
Job knowledge test
Work samples
Situational jdgmt (paper)
Cognitive ability
GPA
Reading comp
Muscular strength
3434
3. Focus in-depth validation on certain jobs first
4. Do not rely on one method of assessment—use a “whole person” approach
5. Minimize the reading level
6. Document, document, document
Defensible Selection
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Documenting the Selection Process
• Job analysis and critical behaviors/KSAs• Decision process for choice of selection methods• Selection method(s) development or purchase• Rating scales and benchmarks• Recruitment activities• Applicant responses (can summarize)• Reference/background check information• Final selection process
• Record retention period: Varies• Recommend three years
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7. Train and be trained• Hiring supervisors• Staff• Candidates
8. Be consistent & courteous with your applicants
9. Establish & follow clear policies & procedures
10. Establish an exam review procedure
Defensible Selection
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11. “Sell” your exam to applicants
12. Pre-test
13. Look at your SMEs
14. Do background and reference checks
Defensible Selection
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Background and Reference Checks
• Background checks are database checks• Reference checks are real-time interviews• Check personnel files when available• Obtain a release• Give yourself enough time
Defensible Selection
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Background Checks• Examples:
• Criminal background checks • Credit checks• Educational/employment verification• Driving record
• Be very wary of using arrest records to deny job• Analyze conviction records—no blanket policies• Tie denial of employment to nature of job• Follow requirements of the FCRA and other laws• May be required for certain jobs (check laws)• Not to be undertaken lightly
Defensible Selection
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Reference Checks
• Do them as part of your due diligence
• Ask job-related questions
• Ask follow up questions
• Use a standard form
• Consider assigning to specialists
• Document questions and answers
• Off-list checks
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15. Provide candidates enough time
16. Keep an eye on things – ongoing evaluation
17. Periodically audit your examination process
18. Set your pass points systematically
Defensible Selection
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Where do we set the pass point?
“…under [the Civil Rights Act] a discriminatory cutoff score on an entry level employment examination must be shown to measure the minimum qualifications necessary for successful performance on the job.”
- Lanning v. SEPTA (1999, 3rd Cir.)
“[cutoff scores should be] reasonable and consistent with normal expectations of performance.”
- Craig v. County of Los Angeles (1980, 9rd Cir.)
“[cutoff scores]…should normally be set as to be reasonable and consistent with normal expectations of acceptable proficiency within the work force.”
- Uniform Guidelines on Employee Selection Procedures (1978)
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19. Check immigration status• Must verify authorization to work in U.S.• Penalties for non-compliance can be steep• Estimates of unauthorized workers up to
30% in some industries (e.g., construction)
20. Consider applicant privacy and medical testing issues
Defensible Selection
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Privacy Violations• Polygraph tests
• Public entities often exempt from laws (esp. police)• Be very wary of relying on them
• Personality tests (e.g., Target, Staples cases)• Drug testing
• Generally supported if administered to all applicants• Tie to job responsibilities (e.g., operates vehicle)• Safer for applicants than current employees• May be required for some jobs (e.g., transportation)• Current use v. rehabilitated addicts & alcoholics
• Criminal/credit history• Follow requirements of the FCRA
• Be aware of state/local laws
Defensible Selection
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Improper Medical Tests
• Pre-employment questions• “Are you able to perform the essential functions of this
job, with or without reasonable accommodation?”
• EEOC definition of medical test
• Medical inquiries/tests must come after job offer
• Karraker v. Rent-A-Center (2005)
• Miller v. City of Springfield (1998)
Defensible Selection
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21. Use broad, inclusive recruitment strategies that target qualified applicants
22. Use standard applications, not resumes
23. Don’t ignore the Uniform Guidelines
24. Involve multiple stakeholders
25. When in doubt … seek help !!
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Electronic newsletters
–www.elinfonet.com
–www.ahipubs.com
–hr.cch.com
–www.blr.com
How can I keep up on all these
changes in the law?
Defensible Selection
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Defensible Selection
Resources/ReferencesLinksUniform Guidelines: www.uniformguidelines.comOFCCP: www.dol.gov/esa/ofccpEEOC: www.eeoc.gov
Recommended Reading1. Testing and assessment: An employer’s guide to good practices. Available at www.onetcenter.org/guides.html2. Gutman, A. (2000). EEO law and personnel practices.3. Brannick & Levine (2002). Job analysis.4. Guion, R.M. (1998). Assessment, measurement, and prediction for personnel decisions.5. Rosen, L. (2005). The safe hiring manual.
Recommended