Adverse Impact and Disparate Treatment: Two
Types of Discrimination
Audra H. Nelson, M.S. 2009
Learning Objectives
By the end of this module, students will be able to:
• Define adverse impact discrimination and perform
the legally accepted calculation to discern if it exists
in a given situation.
• Define disparate treatment discrimination and
understand the process used to determine if there
is reason to believe discrimination has occurred.
• Distinguish among three types of test validity
evidence and understand the steps needed to
collect such evidence.
• Identify related HR policy and procedure
implications.
©SHRM 2009
2
Employment Discrimination
• Personnel decisions.
• Limitation, segregation or classification of
employees or applicants.
• No retaliation.
Title VII of 1964 Civil Rights Act
©SHRM 2009
3
Protected Classes
Under Title VII of the 1964 Civil Rights Act:
•
Race--Includes discrimination on the basis of ancestry or
physical or cultural characteristics associated with a certain
race (e.g., skin color, hair texture or styles).
•
•
•
Sex
National origin
Religion
•
Color--Refers to skin pigmentation (i.e., lightness or
darkness of the skin), complexion, shade or tone. Color
discrimination can occur between persons of different races
or ethnicities, or even between persons of the same race or
ethnicity.
Other federal laws:
•
•
•
•
Pregnancy (Pregnancy Discrimination Act).
Disability (Americans with Disabilities Act).
Age (Age Discrimination in Employment Act).
Other.
©SHRM 2009
4
Disparate/Adverse Impact Discrimination
• Involves employment practices that appear to be
neutral but adversely and disproportionately affect
a protected class of people.
• Focuses on consequences and effect of practice,
not intent.
• Pertinent evidence usually involves a comparison
of selection ratios for protected classes according
to the “4/5ths rule” or “Griggs Standard” (Griggs v.
Duke Power Co., 401 U.S. 424 (1971)).
• If the selection ratio of Protected Class A is less
than 80% of the selection ratio for majority
Protected Class B, then statistical evidence of
discrimination exists.
Title VII of 1964 Civil Right Act and subsequent amendments.
41CFR60-3 – Uniform Guidelines on Employee Selection Procedures - 1978
©SHRM 2009
5
Using the 4/5ths Rule to Calculate Adverse
Impact
1. Calculate selection ratios (SR) for each group.
>
>
Number of women selected divided by the number
of women considered (if using sex as an example).
Number of men selected divided by the number of
men considered.
2. Determine if the selection ratio of the unfavored
group is less than 80 percent (4/5ths) of the
selection ratio of the favored group.
>
>
SR of unfavored group/SR of favored group.
If resulting impact ratio is less than 80 percent,
statistical evidence of adverse impact is present.
41CFR60-3 – Uniform Guidelines on Employee Selection Procedures - 1978
In-class example scenarios and calculations.
©SHRM 2009
6
Disparate/Adverse Impact Discrimination
• If statistical evidence of adverse impact is present,
there is a prima facie case for discrimination, and
the employer must show job-relatedness and
business necessity of the employment practice. (A
discussion of how to prove job relatedness and
business necessity to follow.)
• Attempt to identify alternative employment practice
with less adverse impact.
Title VII of 1964 Civil Right Act and subsequent amendments (Civil Rights Act of 1991)
41CFR60-3 – Uniform Guidelines on Employee Selection Procedures - 1978
©SHRM 2009
7
Other Adverse Impact-Related Cases and
Legislation
•
•
•
•
Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975)
> Specified standards to argue business necessity/job
relatedness (i.e., job analysis).
Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 986 (1988)
> Subjective measures are subject to the same scrutiny of
validation as objective measures.
Wards Cove Packing Co. v. Antonio, 490 U.S. 642 (1989)
> Statistical evidence alone is not enough to prove adverse
impact discrimination.
> Altered the definition of business necessity.
Civil Rights Act of 1991
> Among other things, defined business necessity in a way
that more closely represents that established in Griggs v.
Duke Power.
©SHRM 2009
8
Legal Requirements of Selection Methods
• Any procedure used to select employees can be
construed as a test.
• If a test has adverse impact, the Equal Employment
Opportunity Commission (EEOC) says we must
prove its validity and reliability.
• What is validity?
• What is involved in validating a test?
Three Strategies to Evaluate Validity
1. Criterion-related evidence.
2. Content-related evidence.
3. Construct-related evidence.
41CFR60-3 – Uniform Guidelines on Employee Selection Procedures - 1978
©SHRM 2009
9
Criterion-Related Evidence of Validity
• Is there a statistical relationship between a
predictor and a criterion?
• Predictor: Something used to predict some
outcome related to a job (e.g., pre-employment
tests, GPA, interview ratings).
• Criterion: Some outcome associated with job
success (e.g., performance ratings, attendance,
tenure).
41CFR60-3 – Uniform Guidelines on Employee Selection Procedures - 1978
©SHRM 2009
10
Correlation Analysis
• A statistical procedure used to determine the extent
to which two or more variables are related to each
other.
• Represented by a correlation coefficient = r (a
number between -1.0 and +1.0).
• Positive correlation, negative correlation and
significance of correlation coefficient.
Test Score and Study
Time
100
80
60
Test Score
40
20
0
0
2
4
6
Cohen, J. & Cohen, P. (1983). Applied Multiple Regression/Correlation Analysis for the Behavioral Sciences, 2nd Ed.
©SHRM 2009
11
Criterion-Related Validity Study Methods
• Predictive validity: Measured when test results of
applicants are compared with subsequent job
performance (or some other criteria).
• Concurrent validity: Measured when employer
measures current employees and correlates their
scores with their current performance ratings (or
some other criteria).
41CFR60-3 – Uniform Guidelines on Employee Selection Procedures - 1978
©SHRM 2009
12
Other Strategies to Evaluate Validity
Content-related evidence of validity:
• Does the content of the selection method represent
the requirements of the job?
• Established through job analysis.
Construct-related evidence of validity:
• Does the test measure what it says it measures?
Validity generalization
41CFR60-3 – Uniform Guidelines on Employee Selection Procedures - 1978
©SHRM 2009
13
Reliability
• Reproducibility of results:
> Precision.
> Consistency.
• Test-retest: One method to determine reliability.
Aron, A. & Aron, E.N. (1997). Statistics for the Behavioral Sciences: A Brief Course. PrenticeHall.
©SHRM 2009
14
Important Notes About Validity and Reliability
• A test can be reliable without being valid.
• A test cannot be valid without being reliable.
• All aspects of reliability and validation studies must
be fully documented.
41CFR60-3 – Uniform Guidelines on Employee Selection Procedures - 1978
©SHRM 2009
15
Disparate Treatment Discrimination
• An act of discrimination that involves treating an
employee or applicant differently from another
employee or applicant because of membership in a
protected class.
• Focuses on consequences/effects and intent.
• McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).
Title VII of 1964 Civil Rights Act and subsequent amendments.
©SHRM 2009
16
Disparate Treatment Discrimination
• Plaintiff’s burden:
> Event occurrence: Member of protected class,
applied for job/promotion, rejection, job remained
open or filled by someone else.
> Direct evidence: Tape recording or writing of
wrongfulness.
> Circumstantial evidence and analysis of similarly:
Situated others – ambiguous remarks, history of
related behavior, how others in same protected class
have been treated.
• Defendant’s response.
• Plaintiff’s additional burden.
• In-class activity.
Title VII of 1964 Civil Rights Act and subsequent amendments.
©SHRM 2009
17
Implications for HR Departments
• Management training.
• Anti-discrimination policy and complaint
procedure.
• Sensitivity training.
• Review procedure for employee documentation
and personnel decisions.
• Regular analysis of demographic data.
• Treat employment-at –doctrine as a shield not
as a weapon.
• Other?
©SHRM 2009
18