Valid Selection and Performance Appraisals DO Make a Difference! Dr. Stan Malos, J.D., Ph.D.

Author/Title of Article: Malos, S. B. (2005). The importance of valid selection and performance appraisal: Do management practices figure in case law? In F. Landy (Ed.), Employment Discrimination Litigation: Behavioral, Quantitative, and Legal Perspectives, pp San Francisco: Jossey-Bass.

Key Terms: Validity—The extent to which a selection device [e.g., test, interview] effectively screens for hiring by predicting likely performance among applicants Validity Generalization—The process of applying results from previous validity studies in other contexts similar to the present one “UGLs”—EEOC’s Uniform Guidelines on Employee Selection Procedures

Case Examples re: Selection Allen v. City of Chicago: Police promotional process that adversely impacted minority candidates upheld due to adequate job analysis and content validation in accordance with the UGLs Williams et al. v. Ford Motor Co.: Ability test for production workers that adversely impacted minority candidates upheld due to job analysis, content & criterion validation, and validity generalization in accordance with the UGLs Ass'n of Mexican-American Educators v. State of California: Defensibility of basic skills test (reading, writing, math) for public school teachers that adversely impacted minority candidates upheld due to adequate evidence of reasonable test development and cut scores in accordance with the UGLs

Case Examples re: Performance Appraisal Hawkins v. Pepsico: Termination for poor performance where appraisal results were allegedly lowered due to discriminatory motives upheld for lack of evidence that case involved anything other than an "ordinary workplace disagreement" where supervisor’s race differed from plaintiff's Spears v. Department of Corrections: Allegedly race-based reduction of plaintiff's appraisal rating from "highly successful" to merely "successful" (which plaintiff claimed justified quitting in a constructive discharge case) upheld due to well-accepted rule that “negative” appraisal without tangible harm as a result is not actionable Cullom v. Brown: Delay in black employee's promotion due to appraisal results allegedly too favorable, but for which employee would have known sooner that performance had to improve, not actionable for lack of harm; retaliation claim likewise not actionable where arguably incompetent employee [plaintiff] was promoted due to undeserved favorable rating!

Further Case Examples re: Performance Appraisal Mayer v. Nextel: Failure to put over-40 employee on PIP prior to firing when younger employees were placed on such plans upheld due to "uncontroverted explanation [that] only managers who failed to meet quota were placed on PIPs" and plaintiff had in fact met his quota Sauzek and Koski v. Exxon Coal USA: Appraisal scores lowered just prior to RIF, allegedly suggesting age-related pretext, upheld where appraisal scores for those over and under 40 fluctuated about the same Cerutti et al. v. BASF: RIF criteria developed pursuant to new business plan designed to "repopulate" the company with those who could "do more with less“ -- but which disregarded prior favorable performance reviews -- upheld due to job-related layoff criteria and plaintiffs' inability to establish threshold qualifications under the new criteria (thus rendering moot any allegations of pretext -- for failure to make out a prima facie case!)

Take-Home Message Courts may be gaining sympathy for employers who take reasonably diligent steps to validate selection processes and update performance criteria in light of changing business realities -- even if done just before a RIF! However, employers should still try to stay current in validating and updating hiring processes and performance or retention criteria to enhance both effectiveness and legal defensibility—just do it !