Adverse Impact

1. Adverse Impact by Bart Bartlett & Mike Horibe and… November 6, 2008

2. Naming Convention for the Administrative Manager Series by Sandi Florez

3. ADVERSE IMPACT 3

4. EEO Law of the land

5. Theories of Discrimination • Disparate Impact • Adverse Impact • Pattern and Practice • Failure to Provide Reasonable Accommodation

6. Disparate Treatment • Intentional • Liability • Circumstantial Evidence • Direct Evidence

7. Order of Burdens of Proof • Prima Facie Case • Job relatedness, Content valid • Pretext • No better selection procedure with lesser impact

8. ADVERSE IMPACT “ An employer’s facially neutral policy or practice may still be unlawful even absent a showing of discriminatory intent merely because it has a significant adverse impact on a protected group.”

9. Focuses on Discriminatory Intent DISPARATE TREATMENT

10. ADVERSE IMPACT Focuses on Discriminatory Consequences

11. Significant Court Cases • Griggs v. Duke Power • Watson v. Fortworth Bank & Trust

12. THRESHOLD Plaintiff must show that policy or practice complained of has significantly disproportionate exclusionary impact on plaintiff’s protected class.

13. Form of Proof Statistics Statistically significant difference; results did not occur at random; .05 probability level 80/20 Rule “An employer’s selection criteria has an adverse impact for purpose of plaintiff’s prima facie case where members of the protected group are selected at a rate less than 4/5 (80%) that of the allegedly preferred counterparts.”

14. Example: • 50% White hired • 35% Blacks hired • 35/50 = 70% • Adverse impact would exist

15. Practical Significance of Statistically Significant Disparity • What disparities are probative?

16. Business Necessity & Job Relatedness “Business Purpose must be sufficiently compelling to override adverse impact challenges” “Practice Must effectively carry out the business purpose it is alleged to score” “There is no acceptable selection device available that would better accomplish the business purpose, advance or accomplish it equally well with a lesser differential impact.” “Necessary to safe and efficient job performance” “Data demonstrating that the test is predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job”

17. BFOQ’S • More Stringent standard • Typically found in Sex, Religion and National Origin

18. Remedies • Adverse Impact – back and front pay • Disparate Treatment – Compensatory and Punitive damages

19. Application of Adverse Impact • Scored tests • Non-scored Objective Tests • Subjective Criteria

20. Time to Think…

21. A company interviewed the following people for factory assembly positions: Group # Interviewed # Hired Males 40 20 Females 30 6

22. Did adverse impact occur?

23. How do we know? • Identify the selection rate (% hired) for each group • Male selection rate is 50% (20÷40=50%) • Female selection rate is 20% (6÷30=20%) • Identify the group with the highest selection rate (males @ 50%). This is the majority group.

24. Divide the selection rate of the group with the lowest rate by the selection rate of the group with the highest rate. • 20÷50=40% • Adverse impact is indicated if the selection rate of the minority group is less than 80% or (⅘) of the selection rate of the majority group.

25. In this case, adverse impact is indicated. The selection rate of the females is not 80% that of males. The female selection rate must be at least 40% to avoid a presumption of adverse impact. Females are hired at a rate of 20%.

26. Let’s Look at One in NEOGOV…

27. Applicant Flow by Ethnicity Report • Reports-Reports • Exam # and/or Exam Title • Breakdown Type-Ethnicity • Include Applications-Active or All

28. Step 2. MQs

29. Step 3. Multiple Choice Exam

30. Referred Hired

31. Questions?

32. Naming Convention

33. Naming Exam Plans and Job Posting • Naming convention was implemented Countywide to ensure consistency and simplify efforts locating exam plans, job postings & eligible lists • All recruiters should be adhering to the current naming convention format

34. Current Convention Format As you may know, the correct format to name your job title and exam plan is: 8012MA - 0506 - 054(O)

35. Current Convention Format cont. Types of Recruitments • O = Open • CP = Countywide Promotional • AP = Agency Promotional

36. Revised Format • Revisited convention ID for AM I/II countywide classifications • Concluded that format could be enhanced further to help identify specialty areas for AM I/II recruitments • Revised format is only for AM I/II recruitments only • Use current convention format for all other recruitments • Will research future need for Office Specialist Specialty abbreviations.

37. Administrative Management I/II Countywide Specialties include: Information Technology Budget/Finance Purchasing/Contracts Accounting Real Estate Human Resources Revised Format cont.

38. Revised Format cont.

39. Specialty Coding

40. Naming Convention • New format effective immediately • Naming Convention Tutorial available on NEOGOV/My Links • Questions contact Hiren Patel with HRD