Personnel
Selection
U1: The Legal Context
Schedule:
Wednesday, 1/09:
Monday, 1/14:
Wednesday, 1/16:
Monday, 1/21:
Lecture
Lecture
Exam
No class
MLK Day
1
SO5: Why is selection an
uncertain activity?
 Selection is based on prediction
 We know that all of our decisions are not going to be
correct
 We don’t have all of the information we need to make
perfect predictions
 There are a lot of factors that affect the quality of a
selection process
The primary purpose of selection is to
enhance the probability of making correct decisions
(First few SOs are straightforward; but I just want to make a few general points about selection before moving to the legal issues;
2
many people don’t understand selection well; main things to keep in mind…)
SO5: NFE, Constraints on selection
(except SO1 which is for the exam)
 Limited information about applicants: Relates back to SO1
 The more information you obtain, the costlier it becomes, so
the data you get is severely limited by cost constraints
 When you have a lot of applicants, the costs of selection
become a particularly important factor for the organization
 You can’t possibly interview 50 applicants, for example
 That means the number of applicants must be reduced
considerably at the very beginning of the process
 Usually done by using selection instruments that don’t cost
much to administer (application form and resume)
 The irony is that you can’t get much information from these
 So….many people are rejected upfront based on very little
information
(obviously increases your errors – uncertain activity and you are going to make mistakes; F2 next slide)
3
SO5: NFE, Constraints on selection
 Measures of jobs, individuals, and performance criteria
 Your job analysis is not going to be perfect
 Your interview/test results are not going to be perfect
 Interview - applicant/interviewer is having a bad day
 Tests - wording of questions may cause problems
 Job performance measures used to determine job
relatedness of selection instruments are going to be flawed
4
SO5: NFE, Constraints on selection

Many other factors affect work performance
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Motivation
Equipment
PM programs (task clarification, goal-setting, rewards, etc.)
Work systems and processes
(basically, these are the factors analyzed in our performance diagnostics systems – factors from PSY 6520.
. As behavior analysts, we tend to focus on these factors rather than selection..)
5
SO7: (NFE) Two major objectives
of every selection program
1. Maximize the probability of making accurate selection
decisions
2. Minimize the probability that the organization will lose
EEO and AA challenges by developing procedures that
conform to the legal requirements
Note the wording of the second one - you cannot protect the
organization from claims of unfair discrimination, but you can
develop procedures that decrease the probability that if your
procedures are challenged the EEOC and/or the courts will rule
against you
6
SO7: Professionally vs. legally sound,
NFE



If your procedures are professionally sound, they will
usually be legally sound and,
If your procedures are legally sound they will usually be
professionally sound….
But not always!!


Court decisions are based on the past
 Uniform Guidelines on Employee Selection Procedures promulgated in 1978
 Previous court decisions
The professional field of testing and psychometrics has
continued to advance during that time, so…
 There are procedures that testing professionals consider
sound, while the courts may not
(I’ll point out the discrepancies as we proceed through the course)
7
(NFE) Legal context, intro
 Laws and court decisions are very complex
 Laws and court decisions change over time
 EEO laws are viewed by many in the I/O field as the
most significant event in the history of the field
 Personnel selection is the largest area of specialization in
I/O psychology (and has been historically)
 EEO laws expanded this area of specialization
 Era began with passage of Title VII of the Civil Rights Act of
1964 (two CRAs before that, but not much impact due limitations)
 Financial impact on organizations can be astounding (consider the
examples from last class)
(new laws are passed, most recent American with Disabilities Amendments Act, but before that CRA of 1991; court interpretations change over time depending
8
upon whether the courts are liberal or conservative - Supreme Court is now pretty balanced, slight leaning toward being conservative)
SO8 Intro: Why do laws appear to
disregard interests of business?
 Laws place a considerable burden on employers
 They can be so complex, that you cannot predict
how the courts will rule if a case gets that far,
even if you have studied all of the laws and
regulations:
“We know what we cannot do based on the court
cases, but we do not know what we can do”
Gatewood, Field, & Barrick
(NY State Court system - developing state wide selection tests - one court order mandating that we administer the tests by a designated date;
another court injunction barring us from administering those same tests - threw up our hands - brought in Bob Guion as a friend of the court)
9
SO8: Why do laws appear to
disregard interests of business?
 The laws have been passed to address national
social and economic problems (which is the job
of government)
 The constituents of the laws are not businesses,
but social and political groups and citizens
devoted to solving employment inequities
 Thus, at times, the laws really do seem to
disregard business interests (and, in fact, do)
(remember, you are taking this class as a potential person who will be doing selection; issue for you –
10
students can’t help siding with applicants….)
SO9: FE
Two important points before the laws
1. None of the laws, EEO or AA, require an
organization to hire an unqualified minority
(protected class member)
 EEO requires that the best qualified person is
hired, regardless of whether that person is blue,
green or purple
 AA does give preferential treatment, but only to
qualified applicants
11
SO9, cont: Two important points
2.
Laws are only applicable if your selection procedures
have a disproportionate effect on applicants because
of some demographic characteristic (gender, race,
ethnic background, religion, weight, age, disability,
etc.)
You can have the absolutely worst selection methods - that have
nothing whatsoever to do with the requirements of the job - but if
these procedures have an equal impact on all individuals
(majority and minority alike), a lawsuit cannot be filed. There
must be some evidence that the selection system has a
disproportionate impact on individuals based on some
demographic characteristic.
A lousy selection system is NOT illegal if it affects
everyone the same!!
(some states, sexual orientation - MI; CA - cross-dressers, click: for lousy selection system; Dow can continue to use handwriting analysis as long as)
12
SO10, intro: Three sets of laws
 Laws passed by the legislature and administered by the
Equal Employment Opportunity Commission (part of the
Dept. of Justice)
 Laws passed by the executive branch and administered
by the Office of Federal Contract Compliance Programs
(part of the Dept. of Labor)
 Constitutional amendments (5th and 14th) subject to
administrative law procedures
Note that all three branches of our government are
involved: Legislative, Executive, and Judicial
(text lists laws, but I don’t like the way they are presented and organized, so I present them in a more logical manner in the SOs, but first…
3 sets of laws differ in certain ways, which I will explain in a moment - for the moment, I am going to focus on only on the first two sets of laws)
13
SO10
10A. State the groups/characteristics covered by
each law
10B. Explain the three major differences between
the laws administered by the EEOC and the
OFCCP
14
SO10:
EEO laws administered by the EEOC
Covers all private and public employers
(including Congress as amended in 1972) with
more than 15 individuals, but excludes the
military, private clubs, religious organizations,
and any businesses on Native American
reservations
(Indian reservations are considered sovereign nations - do not cover casinos ( Firekeepers, Soaring Eagle) or any other business on an
Indian reservation - have their own laws and government - laws are NOT the same as those of the rest of the state/country - traffic, criminal laws, etc.
15
Soaring Eagle - employer made derogatory remarks about white employees - got into a lot of trouble, but no law protects individuals on reservations)
10A: State groups/characteristics
covered by each law (EEOC)
 Title VII of the CRA of 1964
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As amended in 1978 also
CRA of 1991
Not really a separate act;
amends several others
Age Discrimination in
Employment Act of 1967
American with Disabilities Act,
1990
ADA Amendments Act, 2008
Genetic Information
Nondiscrimination Act, 2008
 Race, color, religion, sex,
national origin
pregnancy, childbirth
 Same as above
 Individuals over 40
 Physical and mental
disabilities
 Same as above
 Everyone, genetic information
including family medical history
(title VII, sex added to prevent passage by congress members who opposed it- old boy network wouldn’t approve it; Age discrimination - protects elderly??)
16
10A: Other EEOC laws
(but these laws are NFE)
 CRA of 1866*
 Race, national origin, and
ethnic background
 CRA of 1871
 All demographic
characteristics
only state and fed gov.
 Immigration Reform and
Control Act of 1986
 Citizenship, national origin
*Permitted jury trials and compensation for damages that Title VII did not;
thus some cases brought under this act rather than Title VII.
However, the CRA of 1991 now permits (a) jury trials and (b) limited
damage awards for intentional discrimination cases filed under Title VII.
(Title VII only permitted judges to hear cases - next unit; later this unit, 2 kinds of disproportionate cases - intentional and adverse impact)
17
SO10: EEO & AA laws administered
by the OFCCP
These laws are relevant only to government
contractors.
A government contractor is, however, defined broadly,
as any organization that enters into a work contract with
the federal government or receives federal funds.
WMU, for example, is considered to be a federal
contractor because of federal grant dollars, and thus
must abide by these laws.
(notice addition of AA in the title - reason will become clear in a moment)
18
10A: State groups/characteristics
covered by each law (OFCCP)
 Executive Order 11246
 Rehabilitation Act of 1973
(established many precedents
for ADA of 1990)
 Vietnam Veterans Act of 1974
 Race, color, religion, sex,
national origin
(same as Title VII)
 Physical and mental
disabilities
(same as ADA)
 Vietnam era vets, all vets who
are at least 30% disabled
(why duplicate laws? These require AA - the EEOC laws do not. The notion here is that the federal government should not require AA - giving
Preferential treatment to some citizens; however, the government wanted to promote AA as a social policy; thus, if an organization accepts federal dollars,
then they must accept the conditions that go along with that money Compliance is viewed as voluntary in the sense you do not have to accept the fed dollars.)
19
10B: Three basic differences EEOC laws and OFCCP laws
1. Types of organizations covered
 EEOC laws cover all private and public
employers with more than 15 employees (with
some exceptions)
 OFCCP laws cover only federal contractors
2. Affirmative Action
 EEOC laws do not require AA programs
 OFCCP laws do require AA programs
20
10B: Three basic differences EEOC laws and OFCCP laws
3. Penalties for noncompliance
 EEOC laws: Individuals can file a law suit for
unfair discrimination and seek redress
 OFCCP laws: Withdrawal/withholding of federal
dollars - individuals cannot file a law suit under
these laws
(however, there is one exception: oddly, courts did permit
disabled individuals to bring law suits under the Rehabilitation
Act of 1973 until ADA was passed in 1990 - go figure. This
material in parentheses is NFE.)
21
SO11: This slide NFE
Protected classes under Title VII
 In the laws, the protected groups are broadly
defined (race, color, sex, religion, and national
origin)
 The specific protected classes are not indicated
so the laws are flexible and can be applied to
individual cases
 The general protected classes were designated
in the Uniform Guidelines on Employee
Selection Procedures in 1978, and courts have
relied on these (although they have also made
exceptions for individual cases)
22
SO11: Protected classes under
Title VII
 Protected classes
 African American
 Native Americans (including Alaskan natives)
 Hispanics (Mexican, Puerto Rican, Cuban, Central or South
American, or other Spanish origin regardless of race)
 Asians (including Pacific Islanders, but excluding Indians who
are racially Caucasian)
 Females
 Note that classifications are not mutually exclusive
 Pacific Islander who is Hispanic (Phillipino)
 African American who is also Hispanic
 Individuals self-identify
(for exam, only know the five protected classes; multiculturalism is not built into the laws - no such designation))
23
SO11: Protected classes under
Title VII, interesting facts, but NFE
 Laws only cover US citizens and those with legal authorization to
work in the US
 International students who are not citizens and do not have legal
authorization to work in this country (are on student visas) are not
covered by these laws
 Individuals in other minority groups can file a lawsuit, but the courts
will then decide first whether or not they are actually entitled to
coverage under Title VII
 Courts have recently spent a lot of time trying to determine what
constitutes a “religion” (religion vs. spirituality)
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Scientology?
Satanism, Wicca, and Paganism?
Unitarian?
Vodoo?
Over half of the 2,000 plus primary religious groups operating in the US
were formed after 1960
24
SO11: Protected classes under
Title VII, interesting facts (NFE)
 Courts have adopted a very broad definition of religion
“include moral or ethical beliefs as to what is right and wrong and
which are sincerely held with the strength of traditional religious
views…”
 Asians and the term “underrepresented”
 Asians are included as a protected class
 They are often not, however, underrepresented because they
typically perform very well on cognitive ability tests (ACTs, SATs,
GREs, etc.)
 Thus, they are often excluded from some scholarship programs
and AA programs
 When you see the term “underrepresented” minorities, it typically
translates into “Asians excluded”
25
SO12: Why laws and court rulings shift
over time: CRA of 1991, as an example
 Why do we have so many CRAs? Why a CRA of 1991?
 Demonstrates our government at work and the checks
and balances with the three branches of our government
 Congress makes the laws
 The judicial branch (Supreme Court) interprets them
 If Congress doesn’t like how the Supreme Court interprets
laws, they pass new laws
 The above is exactly what happened with respect to Title
VII and the CRA of 1991 (and ADA and ADAAA)
(In personnel selection, what you learn about the laws and court rulings today may or may not be the case tomorrow; things were pretty wild,
after ADA was passed and before ADAAA 2008 – both the CRA of 1991 and ADAAA provide a nice examples of that process) )
26
(NFE) CRA of 1991, a little history
 Start with Title VII of the Civil Rights Act of 1964
 In 1989, the Supreme Court handed down decisions
about three selection cases (the most famous being
Wards Cove)
 The Court was a conservative court, Congress was a
liberal Congress and Congress did not like the decisions
 Democrats typically support EEO and AA due to social
liberalism
 Republicans typically do not due to constraints/impositions
on business
27
(NFE) CRA of 1991, a little history
 Hence, because Congress was liberal, they passed CRA
of 1991 that, with a few exceptions, negated the
decisions of the Supreme Court in the 1989 cases
 Main framer was Edward Kennedy (arch liberal Democrat)
 Worked with Robert Dole (conservative Republican) to draft
the CRA
 Compromises made
 Same process that affected the Shifting Burden of Proof
model for adverse impact cases – established by one of
the first court cases, Griggs v. Duke Power, 1971
 Same process that resulted in ADAAA of 2008
CRA, Edward Kennedy - many, many revisions and compromises before passage; Bush vetoed the first version. Power of the Supreme Court Justices appointed for life and most sought after appt a President makes. Incredible influence on the laws of our country. Pack the court, lib or con.
completely change the “law of the land” for decades.)
28
NFE: Supreme Court Composition
 Four conservative
 Two appointed by Bush, two by Reagan
 Samuel Alito, Anthony Kennedy, Antonin Scalia, Clarence
Thomas,
 Four liberal
 Two appointed by Obama, two by Clinton
 Ruth Bader Ginsberg, Stephen Gerald Breyer, Elena Kagan,
Sonia Sotomayor,
 One “swing vote” who leans conservative
 Appointed by Bush
 John Roberts, Chief Justice
(Right now, pretty balanced court politically)
29
NFE: Supreme Court Composition
 Other interesting facts re the Supreme Court
 Six men, three women (all women are liberal)
 Six Catholic, three Jewish (all Jews are liberal)
 USA Today has great interactive graphics re the
Supreme Court justices
 www.usatoday.com/news/washington/judicial/2010-03-13supreme-court-justice-bios_N.htm
30
SO13: CRA 1991, one significant change
 Before CRA 1991
 Plaintiffs only had to show that the overall selection
process resulted in adverse impact
 After CRA 1991
 Plaintiffs have to tie adverse impact to a particular
selection instrument/practice unless the selection
decision is based on scores from all selection
instruments
 One of the reasons the Supreme Court ruled that a
class action suit was inappropriate in the Walmart case
(although the CRA91 negated most of the SC’s 1989 decisions, there were a few exceptions – next two Sos
relate to two of them; define adverse impact)
31
SO15: CRA of 1991 and race
norming
 The CRA of 1991 bans any type of race norming for
selection purposes
 This provision is again in concert with the Supreme Court
decisions made in 1989
 What is race norming?
You group individuals according to their race and then
rank them with respect to this comparison group.
Whites are grouped with whites. Blacks are grouped with
blacks. Hispanics are grouped with Hispanics. Etc.
Choose/select high scorers from each group, regardless
of how well the blacks compare to whites and Hispanics,
how the Hispanics compare to whites and blacks, etc.
(SO14, NFE)
32
SO15: CRA of 1991 and race
norming
 Most common race norming method
 Create separate ranked selection lists. Then select the top white
first, then the top black, then the top Hispanic, then the top
Native American, then the top Asian, then go back to the white
list with the second ranked applicants.
 More sophisticated approach using percentiles
 Determine percentile rankings for applicants within racial group
and then create one list of percentile rankings
 A white, within the white group, scored in the 96th percentile. That
means the candidate scored better than 96% of the white applicants
 A black, within the black group, scored in the 98th percentile of the
black applicants. That means the candidate scored better than 98%
of the black applicants
 Create one list, with the black candidate above the white candidate,
regardless of whether the black candidate’s raw score was actually
better than the white candidate’s raw score
(used extensively when quotas were acceptable. First major selection case, Griggs v. Duke Power, court imposed a 50% hiring quota for blacks due to
Tests that were not job related and had an adverse impact on blacks)
33
SO15: CRA of 1991 and race
norming
 Race norming was very common before CRA of 1991
 Why?
 Achieved a diverse work force
 Selection procedures cannot be challenged in court if
there is no adverse impact on minorities, and this
procedure prevented adverse impact
 Quotas were once legal; easiest and fairest way to
deal with a court-ordered AA program with, let’s say,
50% hiring quota (i.e., Griggs v. Duke Power)
34
SO16: Arguments for and against
race norming
 For:
Helps employers hire a qualified diverse work
force combined with the fact that selection tests
often account for no more than 25% of how well
individuals perform on the job.
In other words, there is a lot of error in
predictions made by selection tests (at least
75% of how well individuals perform on the job is
often determined by other factors), thus we may
not be sacrificing that much in productivity using
these methods.
(selection specialists are split on this issue)
35
SO16: Arguments for and against
race norming
 Against:
Minorities usually do score lower on many jobrelated, valid selection tests, thus any
adjustments in the rankings of applicants can be
expected to decrease productivity.
(one fact of selection, whether we like it or not, is that on cognitive ability tests, blacks tend to score 1 SD below whites, hispanics tend to score
2 SDs below whites and asians typically score better than whitesl. Given that the tests are job related..)
36
SO18: Constitutional Amendments:
How do they differ from other laws
 5th and 14th Amendments to the Constitution
1. Only relevant to federal, state, and local governments
2. They cover ALL citizens and are not restricted to
demographic groups or characteristics
 Sexual orientation
 Even eye or hair color
3. Individuals must prove the intent to discriminate, not
simply that the selection procedure had disparate impact
 Two types of unfair discrimination: intentional and disparate
impact, I’ll get to the difference in the moment, but
 It is much more difficult to prove intent to discriminate than it
is to prove disparate impact
(Moving onto SO18, 17, NFE; Individuals may also bring unfair discrimination law suits under the 5th and 14th amendments to the constitution; due
process clause in the constitution)
37
SO20: Adverse impact vs. discrimination,
intro
 Fair discrimination is when individuals who have lower
probabilities of being selected would, in fact, perform
lower on the job, if hired
 Unfair discrimination is when individuals who have lower
probabilities of being selected would perform as well, if
hired, as others who had higher probabilities of being
selected
Fair discrimination is NOT illegal even if it has
adverse impact on protected class members!!
(set the stage for this distinction; the purpose of all selection instruments is to discriminate between individuals - otherwise the selection procedure would be
useless. Laws designed to prevent unfair discrimination, not just “discrimination” but we often drop the “unfair” due to context - but it is important; click!!!)
38
SO20: Adverse impact vs. discrimination,
 Adverse impact:
The selection procedure has a disproportionate effect on
demographically different individuals or groups
 Unfair discrimination:
There is not a valid, job-related explanation for the
disproportionate effect (adverse impact)
(text, that is, individuals who belong to a certain demographic group perform more poorly on a selection
procedure than individuals in a different demographic group; next slide continues this.)
39
SO20: Adverse impact does not
equal unfair discrimination
 Adverse impact suggests that unfair discrimination may
have occurred, but it does not, by itself, prove that unfair
discrimination has actually occurred
If the organization can prove that its selection
procedures are job related (valid), and that individuals
who score better on the selection procedure do or would
perform better on the job, then adverse impact is OK.
That’s fair discrimination.
(repeat this; in this case, adverse impact would simply be the result of fair discrimination)
40
SO20: Example of the difference
 A police force requires a physical ability test.
The test has adverse impact on females.
Fair discrimination:
Females who perform more poorly on the test also would
perform more poorly on the job, if hired
Unfair discrimination:
Females who perform more poorly on the test would
perform as well on the job as males, if hired
41
SO20: Two other defenses for
adverse impact
 There are two other legal defenses that
organizations can use to defend adverse impact
 If the selection procedure has “business
necessity”
 If the selection procedure is a “bona fide
occupational qualification”
 If you are really cool, a “BFOQ”
(I’ll explain what these things mean in a moment; shifting burden of proof model for disparate impact cases)
42
SO21: Two types of unfair
discrimination
1. Disparate treatment (= intentional discrimination)
Different standards are applied to different groups
of individuals even if there is no explicit statement
to discriminate or “intent”
 Females are asked if they have children but males
are not
 Blacks are asked if they have an arrest record but
whites are not
(text is a little unclear about disparate treatment; disparate treatment = intentional discrimination even if there was no “conscious intent” or the
Organization did not “mean” to unfairly discriminate; the last phrase “even if” is very important – include it)
43
SO21: Two types of unfair
discrimination
2. Disparate impact
The same procedure is applied uniformly, but it
screens out a disproportionate number of
minorities


Height and weight requirements by police and fire
departments have adverse impact on females,
Hispanics, and Asians and are not job related
BA degree requirement for mfg. supervisors have
adverse impact on Blacks, Hispanics and Native
Americans and are not job related
(Disparate treatment was not considered to be an adequate definition of unfair discrimination, however, because some selection procedures were
applied equally to all applicants, but screened out a disproportionate number of members of protected classes. Definition established by first
major selection court case, Griggs v. Duke Power in 1971.)
44
NFE: Interesting disparate impact case
 The EEOC filed a nationwide hiring discrimination lawsuit against
Kaplan Higher Ed.
 The issue: use of applicants’ credit history discriminates because of
race
 Since 2008, Kaplan has rejected applicants based on their credit
history
 While applied to every applicant, this practice had adverse impact
on blacks and, according to EEOC, is not job-related and cannot be
justified on business necessity
 The EEOC attempted to reach a voluntary settlement before filing
the law suit (in U2, I discuss the settlement process)
 The EEOC is seeking injunctive relief, lost wages and benefits, and
employment of people who were not hired because of use of the
credit history
45
SO22: Shifting burden of proof model,
intro
 Shifting burden of proof model is used in all Title VII
disparate impact cases
 The burden of proof is a very important legal concept,
and while it may seem like a subtle issue, it is not
 22B. This model differs considerably from criminal cases
and what you have seen on TV
 In criminal cases, a defendant (in this case the company)
is considered innocent until proven guilty
 The burden of proof always rests with the prosecution,
beyond a “reasonable doubt”
 Not so in EEOC Title VII disparate impact cases
 As the name of the model suggests, the burden of proof
shifts
(by far the most common cases, since it is very difficult to prove intentional discrimination - unless, black jelly beans, “Any man…” Spend quite a bit
Of time on this - very important)
46
SO22A: Shifting Burden of Proof Model,
diagram and explain
Plaintiff:
Adverse impact
Prima facie case
Defendant:
Three defenses
1.
2.
3.
Validity
Business Necessity
BFOQ
Plaintiff:*
Alternative procedure,
less adverse impact
1. Company “innocent”: Plaintiff has the burden of proof to demonstrate
adverse impact has occurred (prima facie case if proven)
2. Company “guilty”: Defendant must prove its innocence by demonstrating
selection procedure is valid, has business necessity, or is a BFOQ
3. Company “innocent”: But, if plaintiff can demonstrate that an alternative
selection procedure exists that historically results in less adverse impact,
plaintiff “wins”
*Very few plaintiffs have ever won a case at this step;
so while legally possible, yet to be shown to be practical – can’t say much about it .
47
NFE: History of Shifting Burden of
Proof Model
 Established by the Supreme Court in the first
landmark selection case, Griggs v. Duke Power,
1971
 Reversed by the Supreme Court in Wards Cove
Packing Co. v. Antonio, 1989
 Burden of proof rested squarely and almost solely
on the plaintiff, making it very difficult for anyone
to prove disparate impact
 Restored by the CRA of 1991
48
SO23: The three defenses
1. Validity (by far the easiest defense to win)
Organization establishes that the tests are job-related
2. Business necessity (next easiest to win)
If the selection procedure was not used, the safety of workers or
customers would be put at great risk. Effects on economics costs
and profits/loss of business is not acceptable under business
necessity.
 Commercial airlines requiring pilots have a specified number of flight
hours - not subject to the same proof that those hours are job-related
 MMPI for police officers - you don’t want to put guns in the hands of
emotionally unstable individuals
 NY Court System - court officers
(to prove, would have to hire pilots with less flight hours and show they didn’t perform as well)
49
SO23: The three defenses, cont.
3. Bona fide occupational qualification: BFOQ (almost
impossible to win this defense, very limited application)
A person must be of a particular sex, race, color, religion, or national
origin in order to perform the job adequately
 Restricted to sex and religion for jobs like rest room attendants
and church administrators
 Recently expanded to nursing homes, medical facilities, and human
service organizations – customer privacy, not customer preference;
personal needs, bathing, taking a client to the bathroom
 Legally it is impossible to frame a BFOQ defense for race,
color, or national origin
 An Italian restaurant cannot hire only Italian servers or chefs, a
Chinese restaurant cannot hire only Chinese servers or chefs, etc.
(courts have interpreted BFOQ very, very narrowly)
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NFE: Hooters and BFOQ?
 Hooters hires only females as servers, but does
hire males as cooks and dishwashers
 Female servers are required to sign and affirm
the following (from Wikipedia):
 My job duties require I wear the designated
Hooters Girl uniform
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NFE: Hooters and EEO, cont.
 My job duties require that I interact with and
entertain the customers
 The Hooters concept is based on female sex
appeal and the work environment is one in which
joking and sexual innuendo based on female sex
appeal is commonplace
 I do not find my job duties, uniform requirements,
or work environment to be offensive, intimidating,
hostile, or unwelcome
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NFE: Hooters and EEO, cont.
 Several discrimination lawsuits have been
brought against the chain
 The lawsuits have been settled out of court or
dropped by the EEOC (1995 was the big test)
 Some after an advertising campaign
featuring a St. Petersburg, FL,
Hooters kitchen manager
(Vince Gigliotti) dressed in
a
Hooters Girl serving uniform
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SO24: Rank order of defenses
 Validity: job related
 Business necessity
 BFOQ
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SO25: Adverse impact statistics,
intro
 Several different types of statistics can be used to
determine whether adverse impact exists
 There are two broad categories
 Stock
 Flow
 However, companies only have to report statistics for a
demographic group if that demographic group
constitutes at least 2% of the labor market for the job;
that is, adverse impact is only relevant if the
demographic group makes up at least 2% of the labor
market
(define each on next slide)
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SO25: Adverse impact statistics,
intro
 Stock statistics
Stock statistics consider the proportion of qualified
minorities in the geographical region in comparison to the
proportion of minorities in the relevant position
 Flow statistics (“flow” of applicants through the selection
process)
Compares the proportion of minorities who applied and were
selected to the proportion of non-minorities who applied and
were selected
(define both, them come back to each)
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SO25A: Two components of the
“relevant” labor market
 Stock statistics and “relevant labor market”
Stock statistics compare the proportion of minorities in the relevant
labor market in comparison to the proportion of minorities in the
position
 Relevant labor market – two important components
 Geographical region/location, depends upon
 Scope of employer’s recruiting efforts
 Availability of public transportation
 Interest among prospective employees in working for the employer in question
(how far are individuals willing to commute)
 Skill level of the individuals, special qualifications individuals need for
the job
 Number of electrical engineers in an area is quite different than simply the
number of individuals who live in the geographical region
(These are very difficult to determine – often before a case gets to court – spend considerable time determining RLM)
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SO25A: Two components of the
“relevant labor market”
 Determination of RLM is
 Important (greatly influences whether or not adverse impact exists)
 Difficult to determine
 Relevant geographical region depends on the type of job
 RLM for a professor is the country
 RLM for a secretary is the local region
 What’s the RLM for an engineer?
 What constitutes the “local region?”
 In Kalamazoo? Kalamazoo, Portage, Marshall??
 In NYC? The local region would be much larger, 1.5 or 2 hour commutes
 Often considerable time is spent in a court case determining what the
RLM actually is
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SO25A: Two components of the
“relevant labor market,” intro
 Skill level is also critical
 Example
An engineering firm has 225 engineers. Of those, 10 are female. Thus,
4.4% of the engineers are female.
The percentage of female engineers in the relevant labor market is
3%.
Thus, no adverse impact exists.
However, now assume that the percentage of female engineers in the
relevant labor market is 10%.
Now adverse impact exists.
(This example illustrates the importance of the skill level; in both cases, the % of female engineers is the same; but in the second, there is a greater
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Percentage of female engineers in the RLM, and thus adverse impact exists)
SO25A: Two components of the
“relevant labor market, NFE”
 RLM is determined from reports such as:
 US census
 Chamber of commerce
 Industry reports
 Geographical units are usually reported in three forms
 Country
 State
 Standard Metropolitan Statistical Area
 Region surrounding a city or town
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25B: Legal Stock Statistic
Number of female
engineers in the labor force
Number of female
engineers in the organization
-------------------------------
VS.
Total number of
engineers in the organization
------------------------------Total number of
engineers in the labor force
Percentage of female engineers in the organization vs.
percentage of female engineers in the labor force
(labor force = relevant geographical region)
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25B: NFE, Before and after Wards
Cove and Civil Rights Act of 1991
Number of female
engineers in the organization
------------------------------VS.
Total number of
engineers in the organization
VS.
Number of skilled female
engineers in the labor force
------------------------------Total number of skilled
engineers in the labor force
Number of females
in the labor force
------------------------------Total number of people
in the labor force
Griggs v Duke Power, 1971; % of female engineers in company vs. just the percentage of females in the labor force;
more conservative, favors the organization, makes sense)
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25B: How did the comparison
change, NFE
 Difference is very important
 The % of females in the relevant geographical region may be
46%; however,
 The % of females who are engineers in that same
geographical region may be only 4 %
 The change makes it more difficult to establish adverse
impact, but is a much more reasonable standard
63
SO26: Four-fifths (80%) rule
 The most common flow statistics used to
determine adverse impact:
 Four-fifths (80%) rule
 Standard deviation rule
 I’m focusing on the 4/5ths or 80% rule
 This is the most common statistic used
 Recommended in the Uniform Guidelines on
Employee Selection Procedures
 Which is probably why it is the most commonly
used statistic
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SO26: Four-fifths (80%) rule
 Four-fifths or 80% rule (for exam)
For any selection instrument or procedure, adverse
impact is shown if the passing rate of the protected class
is less than 80% of the highest passing rate of any other
demographic group*
*Note very, very carefully that the comparison is not made
to the non-minority demographic group (whites or males),
but to the demographic group that has the highest
passing rate, whether or not that is the non-minority
demographic group (whites or males) or another
protected class.
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SO26: How to calculate adverse
impact using the 4/5ths rule
1. Determine passing rates for each relevant
demographic group
 Whites, Blacks, Hispanics, Asians, Native Americans
 Males, Females
 NOT white females, white males, black females,
black males, hispanic females, hispanic males, etc.
2. .80 X passing rate of group with the highest rate
3. If the passing rate of the demographic group falls
below the number in the second step, adverse
impact has occurred.
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SO26: Example and calculations
Step 1: Determine passing rates for each group
Group
Applicants
Selected
Passing Rate
Whites
165
85
85/165 = 52%
Asians
80
34
34/80 = 43%
Hispanics
27
8
8/27 = 30%
Step 2: .80 X highest passing rate
.80 X 52% = 42%
Step 3: Compare passing rates to highest rate
Asians, 43% is greater than 42%: No adverse impact
Hispanics, 30% is less than 42%: Adverse impact
(ask if anyone has done them; also, notice, in this example the whites have the highest passing rate; but…)
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End of Unit 1
Questions? Comments?
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