Adverse Impact Background
After Title VII was passed, concerns remained that tests were being
used in industry that functioned to limit the opportunities for
minorities to gain employment
Fostered by the exemption in the language contained within Title VII
regarding the use of psychological tests:
“…nor shall it be an unlawful employment practice for an
employer to give and to act upon the results of any
professionally developed ability test provided that such test,
its administration or action upon the results is not
designed, intended or used to discriminate because of race,
color, religion, sex or national origin.”
EEOC Statement (1966) regarding professionally developed tests:
The Commission accordingly interprets “professionally
developed ability tests” to mean a test which fairly measures
the knowledge or skills required by the particular job or
class of jobs which the applicant seeks, … The fact that a test
was prepared by an individual or organization claiming
expertise in test preparation does not, without more, justify
its use within the meaning of Title VII.” (35 Fed. Reg. 12333).
~ Griggs v. Duke Power (1971) ~
Background:
• Duke Power required individuals to possess a high school diploma and
pass two tests (the Wonderlic Personnel Test and Bennett Mechanical
Aptitude Test) to be considered for promotion.
Challengers showed that a much lower percent of blacks possessed a high
school diploma in North Carolina (where the plant was located), and
significantly fewer blacks passed either of the tests.
Company argued that the use of "professionally developed tests" was
allowed under Title VII (technically correct)
Company also said that they did not intend to discriminate against
protected group members by mandating the tests (or the diploma).
From Griggs
“… Congress directed the thrust of the Act to the consequences of
employment practices, not simply the motivation. More than
that, Congress has placed on the employer the burden of showing
that any given requirement must have a manifest relationship
to the employment in question.” “… The Act proscribes not
only overt discrimination but also practices that are fair in form, but
discriminatory in operation. The touchstone is business
necessity. If an employment practice which operates to exclude
Negroes cannot be shown to be related to job performance,
the practice is prohibited.”
~ Albemarle Paper v. Moody (1975) ~
Regarding Backpay Awards
“ ... the Act is intended to make the victims of unlawful discrimination
whole, and that the attainment of this objective rests not only upon the
elimination of the particular unlawful employment practice
complained of, but also requires that persons aggrieved by the
consequences and effects of the unlawful employment practice be, so
far as possible, restored to a position where they would have been were
it not for the unlawful discrimination."
~ Albemarle Paper v. Moody (1975) ~
Albemarle’s Testing Requirements?
Pass the Beta Exam (a test of nonverbal intelligence) and the Wonderlic Test
Why use the Wonderlic?
... selected based on” the theory that a certain verbal intelligence was called for
by the increasing sophistication of the plant's operations.”
No attempt to ascertain the job-relatedness of the Wonderlic
No rationale for the use of the its cutoff score (national norm) for passing
~ Validation Study ~
• A few months before the trial, Albemarle hired a consultant to validate its tests
• 10 job groupings, 9 lines of progression (sample of those near the top of the
progression lines --- 105 employees; 4 Blacks)
• Use of concurrent validation approach (test scores correlated with supervisor
rankings (pair comparisons)
• Instructions to supervisors regarding asessing the performance of their
subordinates: "determine which ones they felt irrespective of the job that they
were actually doing, but in their respective jobs, did a better job than the person
they were rating against . . .
Findings --- A “patchwork” of correlations
Beta Exam: Significnat correlations in 3 out of the 8 lines of progression
Wonderlic: Significant correlations for one form (not the other) obtained in 4
job groups
No significant correlations obtained in 2 groups; tests significant within some
lines of progression but not others
Albemarlle --- Summary of Key Points
>>> Test scores were correlated (rather haphazardly) with job
performance measures across several job categories, but no evidence
existed showing that the jobs were comparable
“The study in this case involved no analysis of the attributes of, or the
particular skills needed in, the studied job groups. There is accordingly no basis
for concluding that "no significant differences" exist among the lines of
progression, or among distinct job groupings within the studied lines of
progression. Indeed, the study's checkered results appear to compel the
opposite conclusion.”
>>> Subjective supervisor evaluations of employees were based on
unclear performance criteria. (e.g., supervisors were asked to assess
which workers, regardless of job category, were better than the
individual to which they were being compared)
There is no way of knowing precisely what criteria of job performance the
supervisors were considering, ...
Albemarle --- Summary of Key Points (cont.)
>>> The sample used in the validation study was heavily comprised
of those who were white, in upper-level positions, and who had
greater years of experience, than the typical job applicant for whom
the tests were being administered
Albemarle's validation study dealt only with job-experienced, white workers; but
the tests themselves are given to new job applicants, who are younger, largely
inexperienced, and in many instances nonwhite. The APA Standards state that it
is "essential" that"[t]he validity of a test should be determined on subjects who are
at the age or in the same educational or vocational situation as the persons for
whom the test is recommended in practice."
~ Connecticut v. Teal (1982) ~
["bottom line" defense]
Background?
• State required the passing of a written test for promotion
• Those who passed the test were placed on a list indicating that they were
eligible for future promotion consideration
• Once on the list, other factors were evaluated in making promotion
decisions such as supervisor recommendations, work performance, and
job tenure.
Black candidates who failed the exam sued, saying that the test was
unrelated to the job and resulted in adverse impact
% of Blacks who passed the test was 54% compared to 79% for whites (or
a passing rate for blacks that was 68% less than that of whites). Clear
violation of the 4/5 rule. But, 30% of Blacks were promoted vs. 13% of
Whites*
* Promotion decisions were made about a year after the suit was filed and about 30 days
before the trial.
~ Supreme Court Decision in Teal ~
Court concluded that the law protects individual employees and that
discrimination can exist even though the group as a whole fared well
"Title VII does not permit the victim of a facially discriminatory
policy to be told that he has been wronged because other persons
in his or her race or sex were hired.” That answer is no more
satisfactory when it is given to victims of a policy that is facially
neutral but practically discriminatory. Every individual employee
is protected against both discriminatory treatment [457 U.S. 440,
456] and "practices that are fair in form, but discriminatory in
operation. ... In sum, petitioners' nondiscriminatory "bottom line"
is no answer, under the terms of Title VII, to respondents' prima
facie claim of employment discrimination.
~ Adverse Impact Process ~
Step 1: The challenger must identify a specific employment practice
that caused the dsicrimination in question (disproportionately
excludes protected group members)
Step 2: The company must demonstrate that the challenged practice
is job related and consistent with business necessity
Step 3: The challenger must prove that an equally valid, job-related
practice exists with less (or no) adverse impact
~ Basic 4/5 Rule Example ~
Evidence for adverse impact will exist if the selection rate for the
minority group (e.g., protected group members) is less that 80%
(4/5) of the majority group.
In the exampl above, the selection process resulted in 25% of male
applicants being hired versus only 10% of females. The difference in
selection ratio for females (.10) is much less than 80% of that for
males (.25). Indeed, it is 40%. In order for adverse impact to not
be implicated here, the organization would have to hire a minimum
of 20 females or a selection ratio of 20%.
4/5 rule is a guideline, a rule of thumb, not a rigid
standard
Uniform Guidelines on Selection Procedures (1978)
Smaller differences in selection rate may nevertheless constitute
adverse impact, where they are significant in both statistical and
practical terms or where a user's actions have discouraged applicants
disproportionately on grounds of race, sex, or ethnic group. Greater
differences in selection rate may not constitute adverse impact where
the differences are based on small numbers and are not statistically
significant, or where special recruiting or other programs cause the pool
of minority or female candidates to be atypical of the normal pool of
applicants from that group.