Personnel Selection

Personnel Selection Schedule: Wednesday, 1/09: Lecture Monday, 1/14: Lecture Wednesday, 1/16: Exam Monday, 1/21: No class MLK Day U1: The Legal Context

SO5: Why is selection an uncertain activity? • Selection is based on prediction • We know that all of our decisions are not going to be correct • We don’t have all of the information we need to make perfect predictions • There are a lot of factors that affect the quality of a selection process The primary purpose of selection is to enhance the probability of making correct decisions (First few SOs are straightforward; but I just want to make a few general points about selection before moving to the legal issues; many people don’t understand selection well; main things to keep in mind…)

SO5: NFE, Constraints on selection(except SO1 which is for the exam) • Limited information about applicants: Relates back to SO1 • The more information you obtain, the costlier it becomes, so the data you get is severely limited by cost constraints • When you have a lot of applicants, the costs of selection become a particularly important factor for the organization • You can’t possibly interview 50 applicants, for example • That means the number of applicants must be reduced considerably at the very beginning of the process • Usually done by using selection instruments that don’t cost much to administer (application form and resume) • The irony is that you can’t get much information from these • So….many people are rejected upfront based on very little information (obviously increases your errors – uncertain activity and you are going to make mistakes; F2 next slide)

SO5: NFE, Constraints on selection • Measures of jobs, individuals, and performance criteria • 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

SO5: NFE, Constraints on selection • Many other factors affect work performance • Motivation • Equipment • PM programs (task clarification, goal-setting, rewards, etc.) • Work systems and processes (basically, these are the factors analyzed in our performance diagnostics systems – factors from PSY 6520. . As behavior analysts, we tend to focus on these factors rather than selection..)

SO7: (NFE) Two major objectives of every selection program • Maximize the probability of making accurate selection decisions • Minimize the probability that the organization will lose EEO and AA challenges by developing procedures that conform to the legal requirements Note the wording of the second one - you cannot protect the organization from claims of unfair discrimination, but you can develop procedures that decrease the probability that if your procedures are challenged the EEOC and/or the courts will rule against you

SO7: Professionally vs. legally sound, NFE • If your procedures are professionally sound, they will usually be legally sound and, • If your procedures are legally sound they will usually be professionally 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 (I’ll point out the discrepancies as we proceed through the course)

(NFE) Legal context, intro • Laws and court decisions are very complex • Laws and court decisions change over time • 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 psychology (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 limitations) • Financial impact on organizations can be astounding (consider the examples from last class) (new laws are passed, most recent American with Disabilities Amendments 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 pretty balanced, slight leaning toward being conservative)

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)

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 solving employment inequities • Thus, at times, the laws really do seem to disregard business interests (and, in fact, do) (remember, you are taking this class as a potential person who will be doing selection; issue for you – students can’t help siding with applicants….)

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 only to qualified applicants

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)

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 don’t 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)

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

SO10: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 ( Firekeepers, 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)

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 ADA Amendments Act, 2008 Genetic InformationNondiscrimination Act, 2008 Race, color, religion, sex, national origin pregnancy, childbirth Same as above Individuals over 40 Physical and mental disabilities Same as above Everyone, genetic informationincluding family medical history 10A: State groups/characteristics covered by each law (EEOC) (title VII, sex added to prevent passage by congress members who opposed it- old boy network wouldn’t approve it; Age discrimination - protects elderly??)

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 10A: Other EEOC laws (but these laws are NFE) *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)

SO10: 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)

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 at least 30% disabled 10A: State groups/characteristics covered by each law (OFCCP) (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.)

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

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.)

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)

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))

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

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”

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 doesn’t like how the Supreme Court interprets laws, they pass new laws • The above is exactly what happened with respect to Title VII and the CRA of 1991 (and ADA and ADAAA) (In personnel selection, what you learn about the laws and court rulings today may or may not be the case tomorrow; things were pretty wild, after ADA was passed and before ADAAA 2008 – both the CRA of 1991 and ADAAA provide a nice examples of that process) )

(NFE) CRA of 1991, a little history • Start with Title VII of the Civil Rights Act of 1964 • 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 due to social liberalism • Republicans typically do not due to constraints/impositions on business

(NFE) CRA of 1991, a little history • Hence, because Congress was liberal, they passed CRA of 1991 that, with a few 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 – established by one of the first court cases, Griggs v. Duke Power, 1971 • Same process that resulted in ADAAA of 2008 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. completely change the “law of the land” for decades.)

NFE: Supreme Court Composition • Four conservative • Two appointed by Bush, two by Reagan • Samuel Alito, Anthony Kennedy, Antonin Scalia, Clarence Thomas, • Four liberal • Two appointed by Obama, two by Clinton • Ruth Bader Ginsberg, Stephen Gerald Breyer, Elena Kagan, Sonia Sotomayor, • One “swing vote” who leans conservative • Appointed by Bush • John Roberts, Chief Justice (Right now, pretty balanced court politically)

NFE: Supreme Court Composition • Other interesting facts re the Supreme Court • Six men, three women (all women are liberal) • Six Catholic, three Jewish (all Jews are liberal) • USA Today has great interactive graphics re the Supreme Court justices • www.usatoday.com/news/washington/judicial/2010-03-13-supreme-court-justice-bios_N.htm

SO13: CRA 1991, one significant change • Before CRA 1991 • Plaintiffs only had to show that the overall selection process resulted in adverse impact • After CRA 1991 • Plaintiffs have to tie adverse impact to a particular selection instrument/practice unless the selection decision is based on scores from all selection instruments • One of the reasons the Supreme Court ruled that a class action suit was inappropriate in the Walmart case (although the CRA91 negated most of the SC’s 1989 decisions, there were a few exceptions – next two Sos relate to two of them; define adverse impact)

SO15: CRA of 1991 and race norming • The CRA of 1991 bans any type of race norming for selection purposes • This provision is again 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. (SO14, NFE)

SO15: 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 candidate’s raw score was actually better than the white candidate’s 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)

SO15: 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, let’s say, 50% hiring quota (i.e., Griggs v. Duke Power)

SO16: 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 (at least 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. (selection specialists are split on this issue)

SO16: 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 whitesl. Given that the tests are job related..)

SO18: 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 impact • Two types of unfair discrimination: intentional and disparate impact, I’ll get to the difference in the moment, but • It is much more difficult to prove intent to discriminate than it is to prove disparate impact (Moving onto SO18, 17, NFE; Individuals may also bring unfair discrimination law suits under the 5th and 14th amendments to the constitution; due process clause in the constitution)

SO20: Adverse impact vs. discrimination, intro • Fair discrimination is when individuals who have lower probabilities of being selected would, in fact, perform lower on the job, if hired • Unfair discrimination is when individuals who have lower probabilities of being selected would perform as well, if hired, as others who had higher probabilities of being selected Fair discrimination is NOT illegal even if it has adverse impact on protected class members!! (set the stage for this distinction; 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” due to context - but it is important; click!!!)

SO20: Adverse impact vs. discrimination, • Adverse impact: The selection procedure has a disproportionate effect on demographically different individuals or groups • Unfair discrimination: There is not a valid, job-related explanation for the disproportionate effect (adverse impact) (text, that is, individuals who belong to a certain demographic group perform more poorly on a selection procedure than individuals in a different demographic group; next slide continues this.)

SO20: 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 do or would perform better on the job, then adverse impact is OK. That’s fair discrimination. (repeat this; in this case, adverse impact would simply be the result of fair discrimination)

SO20: Example of the difference • A police force requires a physical ability test. The test has adverse impact on females. Fair discrimination: Females who perform more poorly on the test also would perform more poorly on the job, if hired Unfair discrimination: Females who perform more poorly on the test would perform as well on the job as males, if hired

SO20: 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” (I’ll explain what these things mean in a moment; shifting burden of proof model for disparate impact cases)

SO21: 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; the last phrase “even if” is very important – include it)

SO21: Two types of unfair discrimination 2. Disparate 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 and are not job related • BA degree requirement for mfg. supervisors have adverse impact on Blacks, Hispanics and Native Americans and are not job related (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.)

NFE: Interesting disparate impact case • The EEOC filed a nationwide hiring discrimination lawsuit against Kaplan Higher Ed. • The issue: use of applicants’ credit history discriminates because of race • Since 2008, Kaplan has rejected applicants based on their credit history • While applied to every applicant, this practice had adverse impact on blacks and, according to EEOC, is not job-related and cannot be justified on business necessity • The EEOC attempted to reach a voluntary settlement before filing the law suit (in U2, I discuss the settlement process) • The EEOC is seeking injunctive relief, lost wages and benefits, and employment of people who were not hired because of use of the credit history

SO22: Shifting burden of proof model, intro • Shifting burden of proof model is used in all Title VII disparate impact cases • The burden of proof is a very important 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 disparate 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)

SO22A: Shifting Burden of Proof Model, diagram and explain Plaintiff: Adverse impact Prima 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 (prima 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” *Very few plaintiffs have ever won a case at this step; so while legally possible, yet to be shown to be practical – can’t say much about it .

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 disparate impact • Restored by the CRA of 1991

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 was 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 • MMPI for police officers - you don’t 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 didn’t perform as well)

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. (courts have interpreted BFOQ very, very narrowly)

Personnel Selection