No employer wants to be sued for discriminatory hiring practices. That’s why leading companies hire employment attorneys and industrial-organizational psychologists to guide them in avoiding even the appearance of discrimination.
But where do these professionals look for their guidance?
The first source is a document that is celebrating its 40th anniversary – the Uniform Guidelines on Employee Selection Procedures (1978), often referred to as, simply, the Uniform Guidelines.
The Uniform Guidelines were written to assist employers, professionals, federal agencies and the courts in understanding, and in some cases, interpreting, the intent of the 1964 Civil Rights Act. The robustness of the Uniform Guidelines has made the document viable to also support the 1991 Civil Rights Act. Both acts have made it illegal for employers to discriminate on the basis of race, religion, color, gender or national origin.
While the Uniform Guidelines is not federal law, it is given “great deference” in the courts. In other words, an employer would be well advised to study this document and follow it closely.
The main purpose of the 1964 Civil Rights Act was to eliminate intentional discrimination (disparate treatment) in the workplace. The courts further refined this with its landmark decision in Griggs v. Duke Power Company (1971).
In Griggs, the Supreme Court clarified that intention to discriminate is not required for an act to be illegal. The ultimate outcome of an employment practice can be reason for an investigation. This is referred to as disparate impact (i.e., when a higher proportion of a protected class is negatively affected).
The Uniform Guidelines has not changed in its 40 years of existence. Supreme Court decisions have supported the principles and further refined definitions after the document’s inception. While there have been close to a dozen landmark decisions by the Supreme Court, the three most impactful decisions were handed down in: Griggs v. Duke Power Company; Albemarle Paper Company v. Moody; and Connecticut v. Teal.
The Key Landmark Decisions
- Griggs v. Duke Power Co. (1971) 401 US 424 – In the Griggs case, Duke Power Company had a history of keeping black workers from entering more desirable, non-labor jobs (disparate treatment).
When the 1964 Act made this illegal, Duke Power opened up its higher-paying jobs but implemented a stringent hurdle to qualify for them. A high school diploma was required of all candidates, as well as threshold scores on two intelligence tests.
The result was a continuation of Duke’s history of keeping black workers out of higher paying non-labor jobs (disparate Impact). The courts found Duke Power guilty of violating anti-discrimination law and clarified the concept of disparate impact.
A final and important note was provided by one of the Supreme Court Justices. Justice Burger, writing for a unanimous Supreme Court and referring to the Guidelines , pointed out that “professionally developed” ability tests are legal. He also noted that, if an employment test results in disparate impact, then the employer must show that it was professionally developed. More specifically, the test must be shown to have a relationship to job outcome (test validity).
- Albemarle Paper Co. v. Moody (1975) 442 US 405 – Similar to Duke Power, the Albemarle Paper Company used “intelligence” (cognitive) tests to make employment decisions, resulting in the same situation – disparate impact. Knowing the challenge Duke Power faced, Albemarle attempted to validate its test by correlating test scores with job performance (i.e., a criterion validity study).
Unfortunately for the paper company, they initiated the study only weeks before the court case. The rushed attempt resulted in four psychometric flaws that were identified by expert witnesses. The Supreme Court decision was that Albemarle fell short of a professionally developed test.
Subsequently, the Uniform Guidelines was adopted in 1978 to clarify how “professionally developed ability tests” should be validated in accordance with the Griggs and Albemarle case results.
- Teal v. Connecticut (1982) 457 US 440 – The Teal case shook up companies, attorneys and professionals who focused on the bottom-line to monitor and avoid disparate impact. Until then, the common approach for most companies had been to focus on the final hiring decision and ensure that the proportion of persons hired from protected classes (e.g., black candidates) did not differ from the proportion of the unprotected class (i.e., white candidates).
In the Connecticut case, the selection procedure included a number of hurdles candidates had to pass to be promoted. After all hurdles were completed, a higher percentage of blacks (22%) than whites (13%) was promoted.
Still, the passing rate for blacks on one of the hurdles – the written test – was significantly lower than for whites. The Supreme Court sided on an implication argument, writing that if one component of a selection procedure causes disparate impact, the entire procedure is implied to be illegal.
How do you measure up?
These three landmark Supreme Court decisions, as well as the Uniform Guidelines, impact employers with 50 or more employees and, thus, it is essential to know and practice accordingly.
So how does your organization measure up?
|Question! Before reading this article…||Yes||No|
|Had you heard of the Uniform Guidelines?|
|Did you know that the courts closely follow the advice of (give “great deference” to) the Uniform Guidelines?|
|Did you know that you can be sued for unintentionally discriminating against a protected class in your hiring practice? (disparate impact)|
|Did you know that if your employment test results in disparate impact, you must prove that it is professionally developed?|
|Did you know that the Uniform Guidelines is a reference on how to create a professionally developed (validated) selection procedure?|
|Did you know that if any step of your selection process (hurdle) results in disparate impact – even if the final decision does not – you can be sued?|
Legal requirements aside, employers should strive to lessen or eliminate disparate impact from employment assessment procedures and tools. Great companies embrace diversity and benefit from it in the workplace.
Using valid tests is just good business practice. Properly validated assessment procedures will have demonstrated that candidates who score higher on the assessment are more likely to perform better on that job. Every company wants that type of information.
The goal of employment testing should be to find a quality fit between a potential employee and the job in ways that better the company and the community.
For a comprehensive look at the Uniform Guidelines in relation to EEO law, see A. Gutman, L. L. Koppes, and J. Vodanovich’s book, EEO Law and Personnel Practices, Third edition (2011).
David Smith, PhD, is the president and CEO of E.A.S.I-Consult®. E.A.S.I-Consult works with Fortune 500 companies, government agencies, and mid-sized corporations to provide customized Talent Management solutions. E.A.S.I-Consult’s specialties include leadership assessment, online pre-employment testing, survey research, competency modeling, leadership development, executive coaching, 360-degree feedback, online structured interviews, and EEO hiring compliance. The company is a leader in the field of providing accurate information about people through professional assessment. To learn more about E.A.S.I-Consult, visit www.easiconsult.com, email ContactUs@easiconsult.com or call 800.922.EASI.
 At this point Justice Burger was referring to the 1966 EEOC Guidelines which was ultimately incorporated into the 1978 Uniform Guidelines.