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Creating Defensible Selection Procedures Bryan Baldwin State of Washington Department of Personnel May 3, 2006 IPMA-HR Western Region Annual Training Conference 1 Defensible Selection Overview/Objectives By the end of today, you will know: 1. What hiring practices can be challenged. 2. What you are defending against. 3. What the relevant laws are. 4. What is meant by “validity.” 5. Why we should care about good selection. 6. What you can do to help ensure defensibility. 2 Defensible Selection “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 3 Defensible Selection 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 4 Defensible Selection It’s not just about defensibility “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) 5 Defensible Selection What are we defending against? 1. Discrimination complaints Disparate treatment Disparate/adverse impact 2. 3. 4. 5. 6. Privacy violations Improper medical tests Negligent hiring/failure to perform due diligence Violations of merit system rules Violations of bargaining contracts 6 Defensible Selection “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 7 Defensible Selection The Laws 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Title VII Section 1981/1983 ADEA ADA and Rehabilitation Act USERRA and VEVRAA FCRA Immigration Reform and Control Act Executive Order 11246 State and local laws Employment torts 8 Defensible Selection 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 9 Defensible Selection “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 10 Defensible Selection 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 11 Defensible Selection 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 jobrelated and consistent with business necessity • Court/jury will look for evidence of validity per the Uniform Guidelines 12 Defensible Selection Exceptions • 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 13 Defensible Selection 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 14 Defensible Selection 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 15 Defensible Selection Applicant Perceptions Instrument Interviews Work sample Resumes References Cognitive ability Personality tests Biodata Honesty tests Source: Hausknecht et al. (2004) Favorability Rating Higher Lower 16 Defensible Selection What is “validity”? 17 Defensible Selection 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 18 Defensible Selection Validity Evidence “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) 19 Defensible Selection So how often do these lawsuits happen, anyway? 20 Defensible Selection Charges in 2005 (thousands) 70 56 60 50 40 30 16.6 15 20 10 0 Title VII Source: EEOC ADEA ADA 21 Defensible Selection 2005 EEOC Charges Filed by Type Religion 2,340 Nat. Orig. 8,035 Disability 14,893 Age 16,585 Sex 23,094 Race/Color 26,740 0 Source: EEOC 10,000 20,000 30,000 22 Defensible Selection Ehh..what’s the worst thing that could happen? 23 Defensible Selection Potential Penalties 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 24 Defensible Selection Title VII, ADA, and ADEA # employees Maximum compensatory & punitive damages per complaining party 15 – 100 $ 50,000 101 – 200 $ 100,000 201 – 500 $ 200,000 > 500 $ 300,000 25 Defensible Selection $ $ $ $ $ $ $ But validation is so expensive! Average cost of content validation: $5-20K Median settlement in discrimination case, ’96-’02: $50-70K Median 2003 compensatory award in discrimination case: $232K Sources: Seberhagen (1990); Jury Verdict Research 26 Defensible Selection First…reality • No selection system is perfect • Someone can always complain 27 Defensible Selection 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) 28 Defensible Selection X X Oral Presentation X Writing Exercise X X X X X X X X X X X X In-Basket Exercise X Prob Period Ability to analyze data and draw sound conclusions. X X Reference Check Ability to apply accounting and auditing principles and procedures in the work performed. Oral Interview Ability to prepare clear, complete and concise reports. Written Test Knowledge, Skills, and Abilities Supp App KSA-Selection Method Matrix 29 Defensible Selection 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 30 Defensible Selection What works? Work experience Interviews Education level References College GPA Written tests 0 100 Supervisors’ Opinion Validity Sources: Schmidt & Hunter (1998); Roth et al. (2005); Aamodt (1998); U.S. MSPB (2005) 31 Defensible Selection Looking in the mirror 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). 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. 5. Companies that screen job applicants for values have higher performance than those that screen for intelligence. Source: Rynes et al. (2002) 32 Defensible Selection Adverse Impact Muscular strength Reading comp GPA Cognitive ability Situational jdgmt (paper) Work samples Job knowledge test Situational jdgmt (video) Biodata Structured interview Conscientiousness Reference checks Integrity tests 0 0.5 1 1.5 2 d-value Sources: Several, including Aamodt (2006), Roth et al. (2001), and Hough et al. (2001) 33 Defensible Selection 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 34 Defensible Selection 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 35 Defensible Selection 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 36 Defensible Selection 11. “Sell” your exam to applicants 12. Pre-test 13. Look at your SMEs 14. Do background and reference checks 37 Defensible Selection 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 38 Defensible Selection 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 39 Defensible Selection 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 40 Defensible Selection 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 41 Defensible Selection Where do we set the pass point? “[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) “[cutoff scores should be] reasonable and consistent with normal expectations of performance.” - Craig v. County of Los Angeles (1980, 9rd Cir.) “…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, 3rd Cir.) 42 Defensible Selection 19. Check immigration status • • • 20. 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 43 Defensible Selection 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 44 Defensible Selection 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) 45 Defensible Selection 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 !! 46 Defensible Selection How can I keep up on all these changes in the law? Electronic newsletters – www.elinfonet.com – www.ahipubs.com – hr.cch.com – www.blr.com 47 Defensible Selection Resources/References Links Uniform Guidelines: www.uniformguidelines.com OFCCP: www.dol.gov/esa/ofccp EEOC: www.eeoc.gov Recommended Reading 1. Testing and assessment: An employer’s guide to good practices. Available at www.onetcenter.org/guides.html 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. 48 Defensible Selection 49