|
Typically, employers are free to establish any criteria
for employment practices they choose, as long as they:
-
Do not
conflict with any negotiated commitment, such as a union
or employee contract, and
-
Do not
have a discriminatory impact on any protected class
without demonstrating a valid reason consistent with
business necessity.
In the
latter case, if there is a non-discriminatory alternative
with an equally valid business justification, then the
alternative should be used. This is a critical point
since assessment can often be shown to be
non-discriminatory but most interviews cannot.
Three Criteria to Establish A Legal Selection
Technique
The basis for non-discriminatory hiring rests on
three principles. First, the selection process should not
have a discriminatory impact, unless, second, there is a
valid justification of business necessity. Finally, if
there is discriminatory impact, even with a valid
business justification, and there is another equally
valid alternative selection method that would have no
discriminatory impact, then the alternative should be
used.
1. Non-Discriminatory Impact
Discriminatory impact, on the surface, is
straightforward. Any selection process, including
recruiting, background checks, interviewing, or testing,
etc., that results in "protected classes" being hired or
promoted significantly less often than non-protected
classes is discriminatory.
Significant impact, as a rule of thumb, means that the
percent of protected classes who are hired, promoted, or
"pass" a selection criterion is less than 80% of the
pass-rate of non-protected individuals who are hired or
promoted.
For example, if, as the result of a screening interview,
50% of all white male applicants pass but only 20% of
females or "minorities" pass, then the screening
interview can be presumed to have discriminatory impact
because the pass-rate of minorities is only 40% of white
male candidates. If, however, 50% of white males pass and
44% of minorities pass, then the pass-rate of minorities
would be 88% of white males and may be presumed to be
non-discriminatory, since the 44% pass-rate for
minorities is not less than 80% of the 50% pass-rate for
white males.
This "Four-Fifths" rule depends on the sample being of
sufficient size to be realistic. If three of four white
males are hired and only one out of two females are hired
from a total of six candidates, then the numbers are too
small to make any valid conclusions.
For small companies that have too few employees in a
position to validate, any testing procedure that has no
discriminatory impact may still be used. For example,
Chally's selection assessment scales are
non-discriminatory in and of themselves.
2. A Business Necessity - Justification For A
Discriminatory Selection Technique
In general, a selection technique must be shown to be
a valid predictor of success on the job to demonstrate
that it is consistent with business necessity. This, in
turn depends on two factors:
Job Relevancy: The factor of position criterion being
assessed or evaluated is an essential (for disabled) or
meaningful (for other protected class legislation) aspect
of the process.
Validity: The measure or test does predict who will
perform that job-relevant factor (skill) successfully and
who will not.
3. Lack Of Non-Discriminatory Alternative With Equal
"Business Necessity" Value
When a selection practice has a discriminatory impact
but can also be proven to be job relevant, i.e., valid
and consistent with business necessity, then a
complainant must demonstrate that a non- discriminatory
alternative selection technique is equally valid and
consistent with business necessity.
For example, if a background check is job relevant but
discriminatory, and a test is available that correlates
equally well with success on the job but does not have
discriminatory impact, then the non-discriminatory test
is the best legal solution to the selection need.
The Bottom Line: It is clear that assessment testing
has proven to be the most effective component of a well
thought-out selection process, not only because it works,
but also because it is legally defensible.
|
