Adverse Impact
by
Bart Bartlett & Mike Horibe
and…
November 6, 2008
Naming Convention for the
Administrative Manager Series
by
Sandi Florez
ADVERSE IMPACT
3
EEO
Law of the land
4
Theories of Discrimination
 Disparate Impact
 Adverse Impact
 Pattern and Practice
 Failure to Provide Reasonable
Accommodation
5
Disparate Treatment
 Intentional
 Liability
 Circumstantial Evidence
 Direct Evidence
6
Order of Burdens of Proof
 Prima Facie Case
 Job relatedness, Content valid
 Pretext
 No better selection procedure with lesser
impact
7
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.”
8
DISPARATE TREATMENT
Focuses on
Discriminatory Intent
9
ADVERSE IMPACT
Focuses on Discriminatory
Consequences
10
Significant Court Cases

Griggs v. Duke Power

Watson v. Fortworth Bank & Trust
11
THRESHOLD
Plaintiff must show that policy or
practice complained of has
significantly disproportionate
exclusionary impact on plaintiff’s
protected class.
12
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.”
13
Example:
 50% White hired
 35% Blacks hired
 35/50 = 70%
 Adverse impact would exist
14
Practical Significance of
Statistically Significant Disparity
 What disparities are probative?
15
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”
16
BFOQ’S
 More Stringent standard
 Typically found in Sex, Religion and
National Origin
17
Remedies
 Adverse Impact – back and front pay
 Disparate Treatment – Compensatory and
Punitive damages
18
Application of Adverse Impact
 Scored tests
 Non-scored Objective Tests
 Subjective Criteria
19
Time to Think…
20
A company interviewed the
following people for factory
assembly positions:
Group # Interviewed # Hired
Males
40
20
Females
30
6
21
Did adverse impact occur?
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How do we know?
1. Identify the selection rate (% hired) for
each group
 Male selection rate is 50%
(20÷40=50%)
 Female selection rate is 20%
(6÷30=20%)
2. Identify the group with the highest
selection rate (males @ 50%). This is the
majority group.
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3. 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%
4. 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.
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• 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%.
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Let’s Look at One in NEOGOV…
26
Applicant Flow by Ethnicity
Report
• Reports-Reports
• Exam # and/or Exam Title
• Breakdown Type-Ethnicity
• Include Applications-Active or All
27
Step 2. MQs
Group
Asian
Black
Filipino
Hispanic
American
Indian
Pacific
Islander
White
Start
163
68
37
608
5
Passed
136
57
29
505
4
Pass Rate
83%
84%
78%
83%
80%
2
2
100%
292
239
82%
28
Step 3. Multiple Choice Exam
Group
Asian
Black
Filipino
Hispanic
American
Indian
Pacific
Islander
White
Start
88
39
16
317
3
Passed
74
34
14
236
2
Pass Rate
84%
87%
88%
74%
67%
2
2
100%
141
118
84%
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Referred Hired
Group
Asian
Black
Filipino
Hispanic
American
Indian
Pacific
Islander
White
Start
83
36
14
266
3
Passed
2
3
1
43
0
Pass Rate
2%
8%
7%
16%
0%
2
0
0%
130
12
9%
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Questions?
31
Naming Convention
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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
33
Current Convention Format
As you may know, the correct format to
name your job title and exam plan is:
8012MA - 0506 - 054(O)
34
Current Convention Format cont.
Types of Recruitments
• O = Open
• CP = Countywide Promotional
• AP = Agency Promotional
35
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.
36
Revised Format cont.
Administrative Management I/II
Countywide Specialties include:
•
•
•
•
•
•
Information Technology
Budget/Finance
Purchasing/Contracts
Accounting
Real Estate
Human Resources
37
Revised Format cont.
8012PC-1108-054-O
8012 = Class Code Number
PC=Specialty Code
1108=Month/Yr
054 = Agency
O = Type of Recruitment
38
Specialty Coding
Admin Manager I/II Countywide Recruitments
Specialty Type
Code
Information Technology
IT
Human Resources
HR
Purchasing/Contracts
PC
Accounting
AC
Real Estate
RE
Budget/Finance
BF
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Naming Convention
• New format effective immediately
• Naming Convention Tutorial available on
NEOGOV/My Links
• Questions contact Hiren Patel with HRD
40