Transcript Slide 1

Creating Defensible
Selection Procedures
Bryan Baldwin
State of Washington
Department of Personnel
May 3, 2006
IPMA-HR Western Region Annual Training Conference
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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.
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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
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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
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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)
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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
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Defensible Selection
“Defensible”
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Withstands scrutiny from:
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Applicants/candidates
Peers
Union representatives
Regulatory agencies
Attorneys
Jury
Judge
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Something you could stand behind
• Something you wouldn’t mind seeing in the paper
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Defensible Selection
The Laws
1.
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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
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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
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Defensible Selection
“Internet Applicants”
• New OFCCP regulations
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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
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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
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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
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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
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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
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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
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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:
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Recommending the employer to others
Perceptions of fairness
Applicants’ intention to take a job
Organizational attractiveness
Turnover intentions
Filing complaints
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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
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Defensible Selection
What is “validity”?
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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
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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)
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Defensible Selection
So how often do
these lawsuits
happen, anyway?
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Defensible Selection
Charges in 2005 (thousands)
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56
60
50
40
30
16.6
15
20
10
0
Title VII
Source: EEOC
ADEA
ADA
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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
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Defensible Selection
Ehh..what’s
the worst
thing that
could happen?
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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
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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
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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
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Defensible Selection
First…reality
• No selection system is perfect
• Someone can always complain
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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)
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Defensible Selection
X
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Oral Presentation
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Writing Exercise
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In-Basket
Exercise
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Prob Period
Ability to analyze data and draw
sound conclusions.
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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
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Defensible Selection
2. Use “good” exams
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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
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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)
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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)
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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
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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
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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
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Defensible Selection
11. “Sell” your exam to applicants
12. Pre-test
13. Look at your SMEs
14. Do background and reference checks
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Defensible Selection
Background and Reference Checks
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Background checks are database checks
Reference checks are real-time interviews
Check personnel files when available
Obtain a release
Give yourself enough time
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Defensible Selection
Background Checks
• Examples:
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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
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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
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Defensible Selection
15.
Provide candidates enough time
16.
Keep an eye on things – ongoing evaluation
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Periodically audit your examination process
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Set your pass points systematically
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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.)
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Defensible Selection
19.
Check immigration status
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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
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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
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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
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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)
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Defensible Selection
21.
Use broad, inclusive recruitment strategies
that target qualified applicants
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Use standard applications, not resumes
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Don’t ignore the Uniform Guidelines
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Involve multiple stakeholders
25.
When in doubt … seek
help !!
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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
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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.
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Defensible Selection
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