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1 Bryan Baldwin State of Washington Department of Personnel May 3, 2006 Creating Defensible Selection Procedures IPMA-HR Western Region Annual Training.

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Presentation on theme: "1 Bryan Baldwin State of Washington Department of Personnel May 3, 2006 Creating Defensible Selection Procedures IPMA-HR Western Region Annual Training."— Presentation transcript:

1 1 Bryan Baldwin State of Washington Department of Personnel May 3, 2006 Creating Defensible Selection Procedures IPMA-HR Western Region Annual Training Conference

2 2 Overview/Objectives By the end of today, you will know: What hiring practices can be challenged What you are defending against What the relevant laws are What is meant by “validity.” Why we should care about good selection What you can do to help ensure defensibility. Defensible Selection

3 3 “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

4 4 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

5 5 “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

6 6 What are we defending against? 1. 1.Discrimination complaints   Disparate treatment   Disparate/adverse impact 2. 2.Privacy violations 3. 3.Improper medical tests 4. 4.Negligent hiring/failure to perform due diligence 5. 5.Violations of merit system rules 6. 6.Violations of bargaining contracts Defensible Selection

7 7 “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

8 8 The Laws 1. 1.Title VII 2. 2.Section 1981/ ADEA 4. 4.ADA and Rehabilitation Act 5. 5.USERRA and VEVRAA 6. 6.FCRA 7. 7.Immigration Reform and Control Act 8. 8.Executive Order State and local laws Employment torts Defensible Selection

9 9 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 Security 6.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

10 10 “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

11 11 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

12 12 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

13 13 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

14 14 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

15 15 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

16 16 Applicant Perceptions InstrumentFavorability Rating InterviewsHigher Work sample Resumes References Cognitive ability Personality tests Biodata Honesty tests Lower Source: Hausknecht et al. (2004) Defensible Selection

17 17 Defensible Selection What is “validity”?

18 18 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

19 19 “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

20 20 So how often do these lawsuits happen, anyway? Defensible Selection

21 21 Charges in 2005 (thousands) Source: EEOC Defensible Selection

22 22 Source: EEOC 2005 EEOC Charges Filed by Type Defensible Selection

23 23 Ehh..what’s the worst thing that could happen? Defensible Selection

24 24 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

25 25 # employees Maximum compensatory & punitive damages per complaining party 15 – 100$ 50, – 200$ 100, – 500$ 200,000 > 500$ 300,000 Title VII, ADA, and ADEA Defensible Selection

26 26 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

27 27 First…reality No selection system is perfect Someone can always complain Defensible Selection

28 28 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

29 29 Defensible Selection KSA-Selection Method Matrix

30 30 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

31 31 Sources: Schmidt & Hunter (1998); Roth et al. (2005); Aamodt (1998); U.S. MSPB (2005) Defensible Selection What works? Supervisors’ Opinion Validity

32 32 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.

33 33 Adverse Impact Sources: Several, including Aamodt (2006), Roth et al. (2001), and Hough et al. (2001) Defensible Selection d-value

34 34 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

35 35 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 Defensible Selection

36 36 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

37 “Sell” your exam to applicants 12. Pre-test 13. Look at your SMEs 14. Do background and reference checks Defensible Selection

38 38 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

39 39 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

40 40 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 Defensible Selection

41 41 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

42 42 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, 3 rd Cir.) “[cutoff scores should be] reasonable and consistent with normal expectations of performance.” - Craig v. County of Los Angeles (1980, 9 rd 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) Defensible Selection

43 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) Consider applicant privacy and medical testing issues Defensible Selection

44 44 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

45 45 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

46 46 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 !! Defensible Selection

47 47 Electronic newsletters – – – hr.cch.com – How can I keep up on all these changes in the law? Defensible Selection

48 48 Defensible Selection Resources/References Links Uniform Guidelines: OFCCP: EEOC: Recommended Reading 1.Testing and assessment: An employer’s guide to good practices. Available at 2. 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.

49 49 Defensible Selection


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