Personnel Selection

1
Personnel Selection

• U1 The Legal Context

Schedule Wednesday and Monday
Lecture Wednesday, 1/14 Exam
2
SO5 Why is selection an uncertain
activity?

• Selection is based on prediction
• 1. Limited information about applicants quality
  depends upon accuracy and completeness about
  applicants
• The more information you obtain, the costlier it
  becomes, so the data you get is severely limited
  by cost constraints
• 50 applicants - interviews?
• 2. Measurement of jobs, individuals and work
  performance
• Your job analysis is not going to be perfect
• Your interview/test results are not going to be
  perfect
• Interview - applicant/interviewer is having a bad
  day
• Tests - wording of questions may cause problems
• Job performance measures used to determine job
  relatedness of selection instruments are going to
  be flawed

(Start with SO5, 1-4 just introductory terms
dont need to know the reasonswe will never be
able to make perfect selection decisions even
given an excellent selection system 3 general
reasons)
3
SO5 Why is selection an uncertain
activity?

• 3. Many other factors affect work performance
• Motivation
• Equipment
• PM programs (task clarification, goal-setting,
  rewards, etc.)
• Systems analysis

(basically, these are all the factors you
analyzed and discussed in Systems Analysis and in
my Psy of Work when we were dealing with
performance diagnostics. As behavior analysts, we
tend to focus on these factors rather than
selection - get at the persons ability on the
job and training.)
4
SO6 NFEPrimary purpose of selection

• The primary purpose of selection is to enhance
  the probability of making correct employment
  decisions
• Select the applicants that have the highest
  probability of performing well on the job based
  on
• What you know about the job what KSAs are
  required
• What you know about the individual based on
  selection instruments
• Resume
• Interviews
• References
• Training and experience evaluations
• Tests (ability, personality, integrity, drug,
  etc.)

(Since we know that we cannot make perfect
selection decisions, the primary purpose of
selection is to
5
SO7 (NFE) Two major objectives of
every selection program

• To develop procedures that are professionally
  sound
• To develop procedures that conform to the legal
  requirements, thus protecting the organization
  from losing EEO and AA challenges
• Note the wording - you cannot protect the
  organization from claims of unfair
  discrimination, but you can develop procedures
  that increase the probability that if your
  procedures are challenged by an individual or, in
  some cases, the EEOC, the EEOC or the courts will
  rule in your favor

6
SO7 (NFE) Professionally sound vs.
legally sound

• If your procedures are professionally sound, they
  will usually stand up to legal scrutiny and,
• If you procedures meet legal standards they will
  usually be professional sound.
• But not always!!
• Court decisions are based on the past
• Uniform Guidelines on Employee Selection
  Procedures - promulgated in 1978
• Previous court decisions
• The professional field of testing and
  psychometrics has continued to advance during
  that time, so
• There are procedures that testing professionals
  consider sound, while the courts may not

(Ill point out the discrepancies as we proceed
through the course)
7
(NFE) Legal context, intro

• Laws and court decisions change over time
• Are very, very complex
• EEO laws are viewed by many in the I/O field as
  the most significant event in the history of the
  field
• Personnel selection is the largest area of
  specialization in I/O (and has been historically)
• EEO laws expanded this area of specialization
• Era began with passage of Title VII of the Civil
  Rights Act of 1964 (two CRAs before that, but not
  much impact due their limitations)
• Financial impact on organizations can be
  astounding (consider the examples from last class)

(new laws are passed, most recent American with
Disabilities Act, but before that CRA of 1991
court interpretations change over time depending
upon whether the courts are liberal or
conservative - Supreme Court is now very
conservative))
8
SO8 Intro Why do laws appear to disregard
interests of business?

• Laws place a considerable burden on employers
• They can be so complex, that you cannot predict
  how the courts will rule if a case gets that far,
  even if you have studied all of the laws and
  regulations
• We know what we cannot do based on the court
  cases, but we do not know what we can do
• Gatewood, Field, Barrick

(NY State Court system - developing state wide
selection tests - one court order mandating that
we administer the tests by a designated
date Another court injunction barring us from
administering those same tests - threw up our
hands - brought in Bob Guion as a friend of the
court)
9
SO8 Why do laws appear to disregard interests
of business?

• The laws have been passed to address national
  social and economic problems (which is the job of
  government)
• The constituents of the laws are not businesses,
  but social and political groups and citizens
  devoted to the solution of employment inequities
  and problems
• Thus, at times, the laws really do seem to
  disregard business interests

(remember, you are taking this class as a
potential person who will be doing selection
issue for you students cant help siding with
applicants.)
10
SO9 FETwo important points before the laws

• 1. None of the laws, EEO or AA, require an
  organization to hire an unqualified minority
  (protected class member)
• EEO requires that the best qualified person is
  hired, regardless of whether that person is blue,
  green or purple
• AA does give preferential treatment, but
  nonetheless only to qualified applicants

11
SO9, cont Two important points

• 2. Laws are only applicable if your selection
  procedures have a disproportionate effect on
  applicants because of some demographic
  characteristic (gender, race, ethnic background,
  religion, weight, age, disability, etc.)
• You can have the absolutely worst selection
  methods - that have nothing whatsoever to do with
  the requirements of the job - but if these
  procedures have an equal impact on all
  individuals (majority and minority alike), a
  lawsuit cannot be filed. There must be some
  evidence that the selection system has a
  disproportionate impact on individuals based on
  some demographic characteristic.

A lousy selection system is NOT illegal if it
affects everyone the same!!
(some states, sexual orientation - MI CA -
cross-dressers, click for lousy selection
system Dow can continue to use handwriting
analysis as long as)
12
SO10, intro Three sets of laws

• Laws passed by the legislature and administered
  by the Equal Employment Opportunity Commission
  (part of the Dept. of Justice)
• Laws passed by the executive branch and
  administered by the Office of Federal Contract
  Compliance Programs (part of the Dept. of Labor)
• Constitutional amendments (5th and 14th) subject
  to administrative law procedures
• Note that all three branches of our government
  are involved Legislative, Executive, and Judicial

(text lists laws, but I dont like the way they
are presented and organized, so I present them in
a more logical manner in the SOs, but first 3
sets of laws differ in certain ways, which I will
explain in a moment - for the moment, I am going
to focus on only on the first two sets of laws)
13
SO10

• 10A. State the groups/characteristics covered by
  each law
• 10B. Explain the three major differences between
  the laws administered by the EEOC and the OFCCP

14
SO10, but this slide NFE EEO laws administered
by the EEOC

• Covers all private and public employers
  (including Congress as amended in 1972) with more
  than 15 individuals, but excludes the military,
  private clubs, religious organizations, and any
  businesses on Native American reservations

(Indian reservations are considered sovereign
nations - do not cover casinos ( Soaring Eagle)
or any other business on an Indian reservation -
have their own laws and government - laws are NOT
the same as those of the rest of the
state/country - traffic, criminal laws, etc.
Soaring Eagle - employer made derogatory remarks
about white employees - got into a lot of
trouble, but no law protects individuals on
reservations)
15
10A State groups/characteristics
covered by each law (EEOC)

• Title VII of the CRA of 1964
• As amended in 1978 also
• CRA of 1991
• Not really a separate act amends several others
• Age Discrimination in Employment Act of 1967
• American with Disabilities Act, 1990
• parts for selection, 1992
• other parts, 1994

• Race, color, religion, sex, national origin
• pregnancy, childbirth
• Same as above
• Individuals over 40 years of age
• Physical and mental disabilities

(title VII, sex added to prevent passage by
congress members who opposed it- old boy network
wouldnt approve it Age discrimination -
protects elderly??)
16
10A Other EEOC laws (but these laws are
NFE)

• CRA of 1866
• CRA of 1871
• only state and fed gov.
• Immigration Reform and Control Act of 1986

• Race, national origin, and ethnic background
• All demographic characteristics
• Citizenship, national origin

Permitted jury trials and compensation for
damages that Title VII did not thus some
cases brought under this act rather than Title
VII. However, the CRA of 1991 now permits (a)
jury trials and (b) limited damage awards for
intentional discrimination cases filed under
Title VII.
(Title VII only permitted judges to hear cases -
next unit later this unit, 2 kinds of
disproportionate cases - intentional and adverse
impact)
17
SO10 (this slide NFE) EEO AA laws administered
by the OFCCP

• These laws are relevant only to government
  contractors. A government contractor is, however,
  defined broadly, as any organization that enters
  into a work contract with the federal government
  or receives federal funds.
• WMU, for example, is considered to be a federal
  contractor because of federal grant dollars, and
  thus must abide by these laws.

(notice addition of AA in the title - reason will
become clear in a moment)
18
10A State groups/characteristics
covered by each law (OFCCP)

• Executive Order 11246
• Rehabilitation Act of 1973
• (established many precedents for ADA of 1990)
• Vietnam Veterans Act of 1974

• Race, color, religion, sex, national origin
• (same as Title VII)
• Physical and mental disabilities
• (same as ADA)
• Vietnam era vets, all vets who are 30 disabled

Not in text but in study objectives, include
this for the exam
(why duplicate laws? These require AA - the EEOC
laws do not. The notion here is that the federal
government should not require AA -
giving Preferential treatment to some citizens
however, the government wanted to promote AA as a
social policy thus, if an organization accepts
federal dollars, then they must accept the
conditions that go along with that money
Compliance is viewed as voluntary in the sense
you do not have to accept the fed dollars.)
19
10B Three basic differences - EEOC laws
and OFCCP laws

• 1. Types of organizations covered
• EEOC laws cover all private and public employers
  with more than 15 employees (with some
  exceptions)
• OFCCP laws cover only federal contractors
• 2. Affirmative Action
• EEOC laws do not require AA programs
• OFCCP laws do require AA programs

20
10B Three basic differences - EEOC laws
and OFCCP laws

• 3. Penalties for noncompliance
• EEOC laws Individuals can file a law suit for
  unfair discrimination and seek redress
• OFCCP laws Withdrawal/withholding of federal
  dollars - individuals cannot file a law suit
  under these laws
• (however, there is one exception oddly, courts
  did permit disabled individuals to bring law
  suits under the Rehabilitation Act of 1973 until
  ADA was passed in 1990 - go figure. This material
  in parentheses is NFE.)

21
SO11 This slide NFEProtected classes under
Title VII

• In the laws, the protected groups are broadly
  defined (race, color, sex, religion, and national
  origin)
• The specific protected classes are not indicated
  so the laws are flexible and can be applied to
  individual cases
• The general protected classes were designated in
  the Uniform Guidelines on Employee Selection
  Procedures in 1978, and courts have relied on
  these (although they have also made exceptions
  for individual cases)

22
SO11 Protected classes under Title VII

• Protected classes
• African American
• Native Americans (including Alaskan natives)
• Hispanics (Mexican, Puerto Rican, Cuban, Central
  or South American, or other Spanish origin
  regardless of race)
• Asians (including Pacific Islanders, but
  excluding Indians who are racially Caucasian)
• Females
• Note that classifications are not mutually
  exclusive
• Pacific Islander who is Hispanic (Phillipino)
• African American who is also Hispanic
• Individuals self-identify

(for exam, only know the five protected classes
multiculturalism is not built into the laws - no
such designation))
23
SO11 Protected classes under Title VII,
interesting facts, but NFE

• Laws only cover US citizens and those with legal
  authorization to work in the US
• International students who are not citizens and
  do not have legal authorization to work in this
  country (are on student visas) are not covered by
  these laws
• Individuals in other minority groups can file a
  lawsuit, but the courts will then decide first
  whether or not they are actually entitled to
  coverage under Title VII
• Courts have recently spent a lot of time trying
  to determine what constitutes a religion
  (religion vs. spirituality)
• Scientology?
• Satanism, Wicca, and Paganism?
• Unitarian?
• Vodoo?
• Over half of the 2,000 plus primary religious
  groups operating in the US were formed after 1960

24
SO11 Protected classes under Title VII,
interesting facts (NFE)

• Courts have adopted a very broad definition of
  religion
• include moral or ethical beliefs as to what is
  right and wrong and which are sincerely held with
  the strength of traditional religious views
• Asians and the term underrepresented
• Asians are included as a protected class
• They are often not, however, underrepresented
  because they typically perform very well on
  cognitive ability tests (ACTs, SATs, GREs, etc.)
• Thus, they are often excluded from some
  scholarship programs and AA programs
• When you see the term underrepresented
  minorities, it typically translates into Asians
  excluded

25
SO12 Why laws and court rulings shift over
time CRA of 1991, as an example

• Why do we have so many CRAs? Why a CRA of 1991?
• Demonstrates our government at work and the
  checks and balances with the three branches of
  our government
• Congress makes the laws
• The judicial branch (Supreme Court) interprets
  them
• If Congress doesnt like how the Supreme Court
  has interpreted laws, they pass new laws
• The above is exactly what happened with respect
  to the CRA of 1991

(In personnel selection, what you learn about the
laws and court rulings today may or may not be
the case tomorrow they have actually been pretty
stable for 4-5 years, but before that things
were pretty wild, primarily due to ADA but the
CRA of 1991 provides a nice example of that
process) )
26
(NFE) CRA of 1991, a little history

• In 1989, the Supreme Court handed down decisions
  about three selection cases (the most famous
  being Wards Cove)
• The Court was a conservative court, Congress was
  a liberal Congress and Congress did not like the
  decisions
• Democrats typically support EEO and AA
• Republicans typically do not

27
(NFE) CRA of 1991, a little history

• Hence, because Congress was liberal, they passed
  CRA of 1991 that, with one or two exceptions,
  negated the decisions of the Supreme Court in the
  1989 cases
• Main framer was Edward Kennedy (arch liberal
  Democrat)
• Worked with Robert Dole (conservative Republican)
  to draft the CRA
• Compromises made
• Same process that affected the Shifting Burden of
  Proof model for adverse impact cases SO 22.

CRA, Edward Kennedy - many, many revisions and
compromises before passage Bush vetoed the first
version. Power of the Supreme Court - Justices
appointed for life and most sought after appt a
President makes. Incredible influence on the laws
of our country. Pack the court, lib or con. You
may have noticed this in presidential election
this past Nov. Supreme Court - some justices are
likely to retire completely change the law of
the land for decades.)
28
SO14 CRA of 1991 and race norming

• The CRA of 1991 bans any type of race norming for
  selection purposes
• This provision is actually in concert with the
  Supreme Court decisions made in 1989
• What is race norming?
• You group individuals according to their race
  and then rank them with respect to this
  comparison group.
• Whites are grouped with whites. Blacks are
  grouped with blacks. Hispanics are grouped with
  Hispanics. Etc.
• Choose/select high scorers from each group,
  regardless of how well the blacks compare to
  whites and hispanics, how the hispanics compare
  to whites and blacks, etc.

29
SO14 CRA of 1991 and race norming

• Most common race norming method
• Create separate ranked selection lists. Then
  select the top white first, then the top Black,
  then the top Hispanic, then the top Native
  American, then the top Asian, then go back to the
  white list with the second ranked applicants.
• More sophisticated approach using percentiles
• Determine percentile rankings for applicants
  within racial group and then create one list of
  percentile rankings
• A white, within the white group, scored in the
  96th percentile. That means the candidate scored
  better than 96 of the white applicants
• A black, within the black group, scored in the
  98th percentile of the black applicants. That
  means the candidate scored better than 98 of the
  black applicants
• Create one list, with the black candidate above
  the white candidate, regardless of whether the
  black candidates raw score was actually better
  than the white candidates raw score

(used extensively when quotas were acceptable.
First major selection case, Griggs v. Duke Power,
court imposed a 50 hiring quota for blacks due
to Tests that were not job related and had an
adverse impact on blacks)
30
SO14 CRA of 1991 and race norming

• Race norming was very common before CRA of 1991
• Why?
• Achieved a diverse work force
• Selection procedures cannot be challenged in
  court if there is no adverse impact on
  minorities, and this procedure prevented adverse
  impact
• Quotas were once legal easiest and fairest way
  to deal with a court-ordered AA program with,
  lets say, 50 hiring quota (i.e., Griggs v. Duke
  Power)

31
SO15 Arguments for and against race
norming

• For
• Helps employers hire a qualified diverse work
  force combined with the fact that selection tests
  often account for no more than 25 of how well
  individuals perform on the job.
• In other words, there is a lot of error in
  predictions made by selection tests (75 of how
  well individuals perform on the job is often
  determined by other factors), thus we may not be
  sacrificing that much in productivity using these
  methods.

32
SO15 Arguments for and against race
norming

• Against
• Minorities usually do score lower on many
  job-related, valid selection tests, thus any
  adjustments in the rankings of applicants can be
  expected to decrease productivity.

(one fact of selection, whether we like it or
not, is that on cognitive ability tests, blacks
tend to score 1 SD below whites, hispanics tend
to score 2 SDs below whites and asians typically
score better than whites on math, poorer than
whites on verbal. Given that the tests are job
related..)
33
SO17 Constitutional Amendments How
do they differ from other laws

• 5th and 14th Amendments to the Constitution
• Only relevant to federal, state, and local
  governments
• They cover ALL citizens and are not restricted to
  demographic groups or characteristics
• Sexual orientation
• Even eye or hair color
• Individuals must prove the intent to
  discriminate, not simply that the selection
  procedure had disparate or adverse impact
• Two types of unfair discrimination intent and
  adverse impact, Ill get to the difference in the
  moment, but
• It is much more difficult to prove intent than it
  is to prove adverse impact

(Moving onto SO17, 16, NFE Individuals may also
bring unfair discrimination law suits under the
5th and 14th amendments to the constitution)
34
SO19 Fair and unfair discrimination

• Fair discrimination is when individuals
  (including minorities and protected class
  members) have lower probabilities of being
  selected for a job (perform more poorly on
  selection procedures) and, if hired, would also
  perform more poorly on the job
• Unfair discrimination is when individuals have
  lower probabilities of being selected for a job
  but if hired, would perform as well as others who
  had higher probabilities of being selected

Fair discrimination is NOT illegal even if it has
adverse impact on protected class members!!
(the purpose of all selection instruments is to
discriminate between individuals - otherwise the
selection procedure would be useless.Laws
designed To prevent unfair discrimination, not
just discrimination but we often drop the
unfair because the context carries it - but it
is important click!!!)
35
SO20 Two types of unfair
discrimination

• 1. Disparate treatment ( intentional
  discrimination)
• Different standards are applied to different
  groups of individuals even if there is no
  explicit statement to discriminate or intent
• Females are asked if they have children but males
  are not
• Blacks are asked if they have an arrest record
  but whites are not

(text is a little unclear about disparate
treatment disparate treatment intentional
discrimination even if there was no conscious
intent or the Organization did not mean to
unfairly discriminate)
36
SO20 Two types of unfair
discrimination

• 2. Disparate or adverse impact
• The same procedure is applied uniformly, but it
  screens out a disproportionate number of
  minorities
• Height and weight requirements by police and fire
  departments have adverse impact on females,
  Hispanics, and Asians
• High school and BA degree requirements have
  adverse impact on Blacks, Hispanics and Native
  Americans

(Disparate treatment was not considered to be an
adequate definition of unfair discrimination,
however, because some selection procedures were
applied equally to all applicants, but screened
out a disproportionate number of members of
protected classes. Definition established by
first major selection court case, Griggs v. Duke
Power in 1971.)
37
SO21 Adverse impact does not equal
unfair discrimination

• Adverse impact suggests that unfair
  discrimination may have occurred, but it does
  not, by itself, prove that unfair discrimination
  has actually occurred
• If the organization can prove that its selection
  procedures are job related (valid), and that
  individuals who score better on the selection
  procedure perform better on the job, then adverse
  impact is OK.

(repeat second point in this case, adverse
impact would simply be the result of fair
discrimination)
38
SO21 Two other defenses for adverse
impact

• There are two other legal defenses that
  organizations can use to defend adverse impact
• If the selection procedure has business
  necessity
• If the selection procedure is a bona fide
  occupational qualification
• If you are really cool, a BFOQ

(Ill explain what these things mean in a moment)
39
Summary Unfair discrimination

• There are two legal definitions of unfair
  discrimination
• Disparate treatment ( intentional
  discrimination)
• Disparate/adverse impact
• However, adverse impact does not mean unfair
  discrimination has actually occurred
• The organization has three legal defenses that
  make adverse impact legal (fair discrimination)
• The selection procedures are job related
• The procedures have business necessity
• The procedures are a BFOQ

40
SO22 Shifting burden of proof model,
intro

• Shifting burden of proof model is used in all
  Title VII adverse impact cases
• The burden of proof is a very important and
  critical legal concept, and while it may seem
  like a subtle issue, it is not
• 22B. This model differs considerably from
  criminal cases and what you have seen on TV
• In criminal cases, a defendant (in this case the
  company) is considered innocent until proven
  guilty
• The burden of proof always rests with the
  prosecution, beyond a reasonable doubt
• Not so in EEOC Title VII adverse impact cases
• As the name of the model suggests, the burden of
  proof shifts

(by far the most common cases, since it is very
difficult to prove intentional discrimination -
unless, black jelly beans, Any man Spend quite
a bit Of time on this - very important)
41
SO22A Shifting Burden of Proof Model,
diagram and explain
Plaintiff Adverse impact Prime facie case

• Defendant
• Three defenses
• Validity
• Business Necessity
• BFOQ

Plaintiff Alternative procedure, less adverse
impact
1. Company innocent Plaintiff has the burden
of proof to demonstrate adverse impact has
occurred (prime facie case if proven) 2. Company
guilty Defendant must prove its innocence by
demonstrating selection procedure is valid,
has business necessity, or is a BFOQ 3. Company
innocent But, if plaintiff can demonstrate
that an alternative selection procedure
exists that historically results in less adverse
impact, plaintiff wins
No plaintiff has ever won a case at this step
so while legally possible, it has yet to be
shown to be practically possible.
42
NFE History of Shifting Burden of Proof
Model

• Established by the Supreme Court in the first
  landmark selection case, Griggs v. Duke Power,
  1971
• Reversed by the Supreme Court in Wards Cove
  Packing Co. v. Antonio, 1989
• Burden of proof rested squarely and almost solely
  on the plaintiff, making it very difficult for
  anyone to prove adverse impact
• Restored by the CRA of 1991

43
SO23 The three defenses

• 1. Validity (by far the easiest defense to win)
• Organization establishes that the tests are
  job-related
• 2. Business necessity (next easiest to win)
• If the selection procedure were not used, the
  safety of workers or customers would be put at
  great risk. Effects on economics costs and
  profits/loss of business is not acceptable under
  business necessity.
• Commercial airlines requiring pilots have a
  specified number of flight hours - not subject to
  the same proof that those hours are job-related
• Before ADA, MMPI for police officers - you dont
  want to put guns in the hands of emotionally
  unstable individuals
• NY Court System - court officers

(to prove, would have to hire pilots with less
flight hours and show they didnt perform as well)
44
SO23 The three defenses, cont.

• 3. Bona fide occupational qualification BFOQ
  (almost impossible to win this defense, very
  limited application)
• A person must be of a particular sex, race,
  color, religion, or national origin in order to
  perform the job adequately
• Restricted to sex and religion for jobs like rest
  room attendants and church administrators
• Recently expanded to nursing homes, medical
  facilities, and human service organizations
  customer privacy, not customer preference
  personal needs, bathing, taking a client to the
  bathroom
• Legally it is impossible to frame a BFOQ defense
  for race, color, or national origin
• An Italian restaurant cannot hire only Italian
  servers or chefs, a Chinese restaurant cannot
  hire only Chinese servers or chefs, etc.
• What about Hooters???

(courts have interpreted BFOQ very, very narrowly)
45
NFE Hooters and EEO

• Hooters hires only females as servers, but does
  hire males as cooks and dishwashers
• Female servers are required to sign and affirm
  the following (from Wikipedia)
• My job duties require I wear the designated
  Hooters Girl uniform

46
NFE Hooters and EEO, cont.

• My job duties require that I interact with and
  entertain the customers
• The Hooters concept is based on female sex appeal
  and the work environment is one in which joking
  and sexual innuendo based on female sex appeal is
  commonplace
• I do not find my job duties, uniform
  requirements, or work environment to be
  offensive, intimidating, hostile, or unwelcome

47
NFE Hooters and EEO, cont.

• Several discrimination lawsuits have been brought
  against the chain
• The lawsuits have been settled out of court or
  dropped by the EEOC (1995 was the big test)
• Some after an advertising campaign
  featuring a St. Petersburg, FL,
  Hooters kitchen manager
  (Vince Gigliotti) dressed in a Hooters Girl
  serving uniform

48
SO25 Adverse impact statistics, intro

• Several different types of statistics can be used
  to determine whether adverse impact exists
• There are two broad categories
• Stock
• Flow
• However, companies only have to report statistics
  for a demographic group if that demographic group
  constitutes at least 2 of the labor market for
  the job that is, adverse impact is only relevant
  if the demographic group makes up at least 2 of
  the labor market

49
SO25 Adverse impact statistics, intro

• Stock statistics
• Stock statistics consider the proportion of
  qualified minorities in the relevant labor market
  in comparison to the proportion of minorities in
  the relevant position
• Flow statistics (data gathered at two different
  points of time to determine the flow of
  applicants through the selection process)
• Compares the proportion of minorities who
  applied and were selected to the proportion of
  non-minorities who applied and were selected

(define both, them come back to each)
50
SO25A Two components of the relevant labor
market

• Stock statistics
• Stock statistics consider the proportion of
  qualified minorities in the relevant labor market
  in comparison to the proportion of minorities in
  the relevant position
• Relevant Labor Market two important components
• Geographical region/location, depends upon
• Scope of employers recruiting efforts
• Availability of public transportation
• Interest among prospective employees in working
  for the employer in question (how far are
  individuals willing to commute)
• Skill level of the individuals, special
  qualifications individuals need for the job
• Number of electrical engineers in an area is
  quite different than the general population

(These are very difficult to determine often
before a case gets to court spend considerable
time determining RLM)
51
SO25A Two components of the
relevant labor market

• Determination of RLM is
• Important (can make the difference between
  whether or not adverse impact exists)
• Difficult
• Why is it difficult?
• Depends upon the type of job
• RLM for a professor is the country
• RLM for a secretary is the local region
• Whats the RLM for an engineer?
• What constitutes the local region?
• In Kalamazoo? Kalamazoo, Portage, Marshall??
• In NYC? The local region would be much larger,
  1.5 or 2 hour commutes
• Often considerable time is spent in a court case
  determining what the RLM actually is

52
SO25A Two components of the relevant labor
market, intro

• Skill level is also critical
• Example
• An engineering firm has 225 engineers. Of those,
  10 are female. Thus, 4.4 of the engineers are
  female.
• The percentage of female engineers in the
  relevant labor market is 4.
• Thus, no adverse impact exists.
• However, now assume that the percentage of
  female engineers in the relevant labor market is
  10.
• Now adverse impact exists.

(This example illustrates the importance of the
skill level in both cases, the of female
engineers is the same but in the second, there
is a greater Percentage of female engineers in
the RLM, and thus adverse impact exists)
53
SO25A Two components of the
relevant labor market, NFE

• RLM is determined from reports such as
• US census
• Chamber of commerce
• Industry reports
• Geographical units are usually reported in three
  forms
• Country
• State
• Standard Metropolitan Statistical Area
• Region surrounding a city or town

54
25B Legal Stock Statistic
Number of skilled female engineers in the labor
force
Number of female engineers in the organization
-------------------------------
-------------------------------
VS.
Total number of engineers in the organization
Total number of skilled engineers in the labor
force
(labor force relevant geographical region)
55
25B NFE, Before Wards Cove and Civil Rights Act
of 1991
Number of female engineers in the organization
Number of skilled female engineers in the labor
force
-------------------------------
-------------------------------
VS.
Total number of skilled engineers in the labor
force
Total number of engineers in the organization
Number of females in the labor force
VS.
-------------------------------
Total number of people in the labor force
Griggs v Duke Power, 1971 more conservative,
favors the organization, makes sense)
56
25B How did the comparison change, NFE

• Thus, before Wards Cove CRA 1991 the comparison
  was
• The percentage of minorities in the position
  within the company to the percentage of
  minorities in the relevant geographical region
• After Wards Cove and CRA 1991 the comparison is
• The percentage of minorities in the position
  within the company to the percentage of qualified
  minorities in the relevant geographical region
• The of females in the relevant geographical
  region may be 46 however,
• The of females who are engineers in that same
  geographical region may be only 4.
• The change makes it more difficult to establish
  adverse impact, but is a much more reasonable
  standard

57
SO26 Four-fifths (80) rule

• The most common flow statistics used to determine
  adverse impact
• Four-fifths (80) rule
• Standard deviation rule
• Im focusing on the 4/5ths or 80 rule
• This is the most common statistic used
• Recommended in the Uniform Guidelines on Employee
  Selection Procedures
• Which is probably why it is the most commonly
  used statistic

58
SO26 Four-fifths (80) rule

• Four-fifths or 80 rule (for exam)
• For any selection instrument or procedure,
  adverse impact is shown if the passing rate of
  the protected class is less than 80 of the
  highest passing rate of any other demographic
  group
• Note very, very carefully that the comparison
  is not made to the non-minority demographic
  group (whites or males), but to the demographic
  group that has the highest passing rate, whether
  or not that is the non-minority demographic group
  (whites or males) or another protected class.

59
SO26 How to calculate adverse impact
using the 4/5ths rule

• 1. Determine passing rates for each relevant
  demographic group
• Whites, Blacks, Hispanics, Asians, Native
  Americans
• Males, Females
• NOT white females, white males, black females,
  black males, hispanic females, hispanic males,
  etc.
• 2. .80 X passing rate of group with the highest
  rate
• 3. If the passing rate of the demographic group
  falls below the number in the second step,
  adverse impact has occurred.

60
SO26 Example and calculations
Step 1 Determine passing rates for each group
Step 2 .80 X highest passing rate
.80 X 52 42
Step 3 Compare passing rates to highest rate
Asians, 43 is greater than 42 No adverse
impact Hispanics, 30 is less than 42 Adverse
impact
(ask if anyone has done them also, notice, in
this example the whites have the highest passing
rate but.)
61
SO28 EEO vs. AA

• Equal Employment Opportunity
• Every individual is treated the same and every
  individual who is equally qualified has an equal
  opportunity for employment, promotions, etc.
• No preferential treatment
• Professional selection issue (this is exactly
  what selection systems are designed to do - hire
  the best applicants)
• Not controversial except for racists, sexists,
  etc.

62
SO28 EEO vs. AA

• Affirmative Action
• Redresses historical imbalances and increases
  number of minorities hired in the work place at a
  faster rate than what would occur simply through
  EEO
• Can result in preference being given to
  individuals in certain demographic groups
• If two candidates are equally qualified,
  preference will be given to the minority
  candidate
• A less qualified minority may be hired instead of
  a more qualified majority
• Social policy, not a professional selection
  issue
• Extremely controversial

(pros and cons, I have been on both sides. Denied
a job with a very excellent, major company after
I had interned there for 2 years in favor of a
minority Female who had not worked for the
company. Boss stupidly told me I was a 1 pointer,
she was a 2 pointer. PA - hired into a position
that cold only Be given to a female or minority.
Didnt tell me, when I found out - I was angry,
hurt. Did not want to be hired because. Started
in a hole with colleagues Later vindicated -
white male I was in competition with - he turned
out to be a dufus.
63
NFE Affirmative Action Different and more
controversial than EEO

• Advocates of AA
• EEO often does not exist
• Historical imbalances exist from past
  discrimination
• Opponents of AA
• Violation of basic principles of justice
  (fairness)
• Brands minorities as inferior

64
NFE Affirmative Action Different and more
controversial than EEO

• Affirmative Action
• New York Herald article, circa 1900
• The poor and illiterate class that is a national
  menace and cannot be disregarded with safety
• Immigrants from Asia
• Immigrants from Southern Europe
• Not to mention immigrant Irish who were severely
  persecuted
• The rights of a lot of your foreparents were not
  recognized until the government stepped in and
  affirmatively lifted them up
• (Kenneth Brown, UM, 2004)

65
NFE Affirmative Action Different and more
controversial than EEO

• Affirmative Action
• Threats to college-diversity programs pose risks
  for boys
• What about AA for boys being admitted to college?
• Admissions preferences are being used to maintain
  a balance now when more girls attend college than
  boys, and have better qualifications
• What about other types of preferences?
• What about athletes?
• What about legacy? (preferences for children of
  alumni)
• Justice Dept. sued Illinois State University for
  giving preference to minority and women in a
  janitorial training program, but did not address
  the fact that veterans were given the same
  preference

66
NFE Proposition 2, Michigan

• Proposition 2, passed in November, 2006
• Bans public institutions from using AA programs
  that give preferential treatment to groups or
  individuals based on race, gender, color,
  ethnicity, or national origin for employment,
  education and contracting purposes

67
NFE Proposition 2, Michigan Some
history

• In Michigan, in 1995, the admissions policies of
  both the undergraduate and law school at UM were
  challenged because of AA policies
• The law school admission policy was found to be
  legal, the undergraduate admission policy was
  found to be illegal
• Undergraduate policy awarded 20 points on to the
  admission score for any underrepresented
  minority
• Proposition 2 was sponsored by the same
  individuals that sponsored a similar proposition
  (Prop 209) in CA about 10 years ago, and the
  individual (plus advocates) of the individual who
  was denied admission to the law school

68
NFE Proposition 2 vs. OFCCP

• How does Proposition 2 affect WMU? Seem to have
  contradictory laws with OFCCP requiring AA and
  Proposition 2 banning it
• Federal laws supersede state laws, thus in
  situations where the OFCCP laws require
  affirmative action for hiring, they will take
  precedence (i.e., hiring of staff and professors
  at WMU)
• Federal laws do not address admissions or
  scholarships (or hiring contractors) based on
  diversity, so Proposition 2 will take precedence
• But who knows for sure these laws are quite
  complex and it may take awhile to figure
  everything out!

69
End of Unit 1

• Questions? Comments?