Valid Selection and
Performance Appraisals
DO Make a Difference!
Dr. Stan Malos, J.D., Ph.D.
Author/Title of Article:
Malos, S. B. (2005). The importance of
valid selection and performance appraisal:
Do management practices figure in case
law? In F. Landy (Ed.), Employment
Discrimination Litigation: Behavioral,
Quantitative, and Legal Perspectives, pp.
373-409. San Francisco: Jossey-Bass.
Key Terms:
Validity—The extent to which a selection device
[e.g., test, interview] effectively screens for hiring
by predicting likely performance among applicants
Validity Generalization—The process of applying
results from previous validity studies in other
contexts similar to the present one
“UGLs”—EEOC’s Uniform Guidelines on
Employee Selection Procedures
Case Examples re: Selection
Allen v. City of Chicago: Police promotional process that
adversely impacted minority candidates upheld due to job
analysis and content validation in accordance with the UGLs
Williams et al. v. Ford Motor Co.: Ability test for production
workers that adversely impacted minority candidates upheld due
to job analysis, content & criterion validation, and validity
generalization in accordance with the UGLs
Ass'n of Mexican-American Educators v. State of California:
Defensibility of basic skills test (reading, writing, math) for
public school teachers that adversely impacted minority
candidates upheld due to adequate evidence of reasonable test
development and cut scores in accordance with the UGLs
Case Examples re:
Performance Appraisal (PA)
Hawkins v. Pepsico: Termination for performance based on
allegedly discriminatory PA upheld; case just an "ordinary
workplace disagreement" where rater/ratee races differed
Spears v. Department of Corrections: Reduction of appraisal
from "highly successful" to "successful" (plaintiff quits and
claims constructive discharge) upheld due to well-accepted
rule: “negative” appraisal w/no tangible harm not actionable
Cullom v. Brown: Delay in minority employee's promotion
due to wrongly favorable PA, without which employee would
have known sooner that performance had to improve, not
actionable (no harm); retaliation claim also fails where bad
employee promoted due to undeserved favorable rating!
More Examples re:
Performance Appraisal
Mayer v. Nextel: Failure to put over-40 employee on PIP prior
to firing when others were upheld; only managers who failed to
meet quota were placed on PIPs, and plaintiff in fact met quota
Sauzek and Koski v. Exxon Coal USA: Lower appraisal scores
prior to RIF, allegedly suggesting age-related pretext, upheld;
scores for those over & under 40 fluctuated about the same
*Cerutti et al. v. BASF: RIF criteria developed pursuant to
new business plan designed to "repopulate" company with
those who could "do more with less“ -- but which disregarded
prior favorable PAs-- upheld due to plaintiffs' inability to
establish qualifications under new criteria (thus rendering
pretext moot -- for failure to make out a prima facie case!)
Take-Home Message
Courts gaining sympathy for employers who take
reasonable steps to validate selection processes
and update performance criteria in changing
business realities -- even if done just before a RIF!
Still, employers should stay current and validate
hiring, promotion, or retention criteria to enhance
performance effectiveness and legal defensibility!