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

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Presentation on theme: "After Title VII was passed, concerns remained that tests were being used in industry that functioned to limit the opportunities for minorities to gain."— Presentation transcript:

1 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 Fostered by the exemption in the language contained within Title VII regarding the use of psychological tests: “…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.” Adverse Impact Background

2 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).

3 Background: Duke Power required individuals to possess a high school diploma and pass two tests (the Wonderlic Personnel Test and Bennett Mechanical Aptitude Test) to be considered for promotion. Challengers showed that a much lower percent of blacks possessed a high school diploma in North Carolina (where the plant was located), and significantly fewer blacks passed either of the tests. Company 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 the tests (or the diploma). ~ Griggs v. Duke Power (1971) ~

4 “… 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.” From Griggs

5 “... the Act is intended to make the victims of unlawful discrimination whole, and that the attainment of this objective rests not only upon the elimination of the particular unlawful employment practice complained of, but also requires that persons aggrieved by the consequences and effects of the unlawful employment practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination." Regarding Backpay Awards ~ Albemarle Paper v. Moody (1975) ~

6 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

7 A few months before the trial, Albemarle hired a consultant to validate its tests 10 job groupings, 9 lines of progression (sample 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... ~ Validation Study ~ Findings -- - A “patchwork” of correlations Beta Exam: Significnat 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

8 >>> 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.” Albemarlle --- Summary of Key Points

9 >>> 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.)

10 ~ 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, 30% of Blacks were promoted vs. 13% 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.

11 "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.” That answer is no more satisfactory when it is given to victims of a policy that is facially neutral but practically discriminatory. 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. Court 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 ~

12 Step 1: The challenger must identify a specific employment practice that caused the dsicrimination 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 ~

13 Evidence for adverse impact will exist if the selection rate for the minority group (e.g., protected group members) is less that 80% (4/5) of the majority group. In the exampl above, the selection process resulted in 25% of male applicants being hired versus only 10% of females. The difference in selection ratio for females (.10) is much less than 80% of that for males (.25). Indeed, it is 40%. In order for adverse impact to not be implicated here, the organization would have to hire a minimum of 20 females or a selection ratio of 20%. ~ Basic 4/5 Rule Example ~

14 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, not a rigid standard

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