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Adverse Impact and Disparate Treatment: Two Types of Discrimination Audra H. Nelson, M.S. 2009
Learning Objectives By the end of this module, students will be able to: Define adverse impact discrimination and perform the legally accepted calculation to discern if it exists in a given situation. Define disparate treatment discrimination and understand the process used to determine if there is reason to believe discrimination has occurred. Distinguish among three types of test validity evidence and understand the steps needed to collect such evidence. Identify related HR policy and procedure implications. ©SHRM
3 Employment Discrimination Personnel decisions. Limitation, segregation or classification of employees or applicants. No retaliation. Title VII of 1964 Civil Rights Act
Protected Classes Under Title VII of the 1964 Civil Rights Act: Race-- Includes discrimination on the basis of ancestry or physical or cultural characteristics associated with a certain race (e.g., skin color, hair texture or styles). Sex National origin Religion Color-- Refers to skin pigmentation (i.e., lightness or darkness of the skin), complexion, shade or tone. Color discrimination can occur between persons of different races or ethnicities, or even between persons of the same race or ethnicity. Other federal laws: Pregnancy (Pregnancy Discrimination Act). Disability (Americans with Disabilities Act). Age (Age Discrimination in Employment Act). Other. ©SHRM
Disparate/Adverse Impact Discrimination Involves employment practices that appear to be neutral but adversely and disproportionately affect a protected class of people. Focuses on consequences and effect of practice, not intent. Pertinent evidence usually involves a comparison of selection ratios for protected classes according to the “4/5ths rule” or “Griggs Standard” (Griggs v. Duke Power Co., 401 U.S. 424 (1971)). If the selection ratio of Protected Class A is less than 80% of the selection ratio for majority Protected Class B, then statistical evidence of discrimination exists. Title VII of 1964 Civil Right Act and subsequent amendments. 41CFR60-3 – Uniform Guidelines on Employee Selection Procedures ©SHRM
Using the 4/5ths Rule to Calculate Adverse Impact 1.Calculate selection ratios (SR) for each group. > Number of women selected divided by the number of women considered (if using sex as an example). > Number of men selected divided by the number of men considered. 2.Determine if the selection ratio of the unfavored group is less than 80 percent (4/5 th s) of the selection ratio of the favored group. > SR of unfavored group/SR of favored group. > If resulting impact ratio is less than 80 percent, statistical evidence of adverse impact is present. 41CFR60-3 – Uniform Guidelines on Employee Selection Procedures In-class example scenarios and calculations. ©SHRM
Disparate/Adverse Impact Discrimination If statistical evidence of adverse impact is present, there is a prima facie case for discrimination, and the employer must show job-relatedness and business necessity of the employment practice. (A discussion of how to prove job relatedness and business necessity to follow.) Attempt to identify alternative employment practice with less adverse impact. Title VII of 1964 Civil Right Act and subsequent amendments (Civil Rights Act of 1991) 41CFR60-3 – Uniform Guidelines on Employee Selection Procedures ©SHRM
Other Adverse Impact-Related Cases and Legislation Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975) > Specified standards to argue business necessity/job relatedness (i.e., job analysis). Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 986 (1988) > Subjective measures are subject to the same scrutiny of validation as objective measures. Wards Cove Packing Co. v. Antonio, 490 U.S. 642 (1989) > Statistical evidence alone is not enough to prove adverse impact discrimination. > Altered the definition of business necessity. Civil Rights Act of 1991 > Among other things, defined business necessity in a way that more closely represents that established in Griggs v. Duke Power. ©SHRM
Legal Requirements of Selection Methods Any procedure used to select employees can be construed as a test. If a test has adverse impact, the Equal Employment Opportunity Commission (EEOC) says we must prove its validity and reliability. What is validity? What is involved in validating a test? Three Strategies to Evaluate Validity 1.Criterion-related evidence. 2.Content-related evidence. 3.Construct-related evidence. 41CFR60-3 – Uniform Guidelines on Employee Selection Procedures ©SHRM
Criterion-Related Evidence of Validity Is there a statistical relationship between a predictor and a criterion? Predictor: Something used to predict some outcome related to a job (e.g., pre-employment tests, GPA, interview ratings). Criterion: Some outcome associated with job success (e.g., performance ratings, attendance, tenure). 41CFR60-3 – Uniform Guidelines on Employee Selection Procedures ©SHRM
Correlation Analysis A statistical procedure used to determine the extent to which two or more variables are related to each other. Represented by a correlation coefficient = r (a number between -1.0 and +1.0). Positive correlation, negative correlation and significance of correlation coefficient. Cohen, J. & Cohen, P. (1983). Applied Multiple Regression/Correlation Analysis for the Behavioral Sciences, 2 nd Ed. ©SHRM
Criterion-Related Validity Study Methods Predictive validity: Measured when test results of applicants are compared with subsequent job performance (or some other criteria). Concurrent validity: Measured when employer measures current employees and correlates their scores with their current performance ratings (or some other criteria). 41CFR60-3 – Uniform Guidelines on Employee Selection Procedures ©SHRM
Other Strategies to Evaluate Validity Content-related evidence of validity: Does the content of the selection method represent the requirements of the job? Established through job analysis. Construct-related evidence of validity: Does the test measure what it says it measures? Validity generalization 41CFR60-3 – Uniform Guidelines on Employee Selection Procedures ©SHRM
Reliability Reproducibility of results: > Precision. > Consistency. Test-retest: One method to determine reliability. Aron, A. & Aron, E.N. (1997). Statistics for the Behavioral Sciences: A Brief Course. Prentice- Hall. ©SHRM
Important Notes About Validity and Reliability A test can be reliable without being valid. A test cannot be valid without being reliable. All aspects of reliability and validation studies must be fully documented. 41CFR60-3 – Uniform Guidelines on Employee Selection Procedures ©SHRM
Disparate Treatment Discrimination An act of discrimination that involves treating an employee or applicant differently from another employee or applicant because of membership in a protected class. Focuses on consequences/effects and intent. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Title VII of 1964 Civil Rights Act and subsequent amendments. ©SHRM
Disparate Treatment Discrimination Plaintiff’s burden: > Event occurrence: Member of protected class, applied for job/promotion, rejection, job remained open or filled by someone else. > Direct evidence: Tape recording or writing of wrongfulness. > Circumstantial evidence and analysis of similarly: Situated others – ambiguous remarks, history of related behavior, how others in same protected class have been treated. Defendant’s response. Plaintiff’s additional burden. In-class activity. Title VII of 1964 Civil Rights Act and subsequent amendments. ©SHRM
Implications for HR Departments ©SHRM Management training. Anti-discrimination policy and complaint procedure. Sensitivity training. Review procedure for employee documentation and personnel decisions. Regular analysis of demographic data. Treat employment-at –doctrine as a shield not as a weapon. Other?
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