Gatewood

HUMAN RESOURCE
SELECTION, 8E

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 Legal Issues in Selection
Chapter 4

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 Legal Issues in Selection
For selection programs, legal policies
guide:
the records that must be kept on all
employment decisions
The determination of fair treatment of all
applicants, and
The methods for identifying the job
relatedness of selection devices
Failure to do so can lead to charges of
discrimination
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 Legal Issues in Selection (2)
Every selection program should have two
objectives:
A) Maximizing the probability of making
accurate selection decisions about applicants,
and
B) ensuring that these selection decisions are
carried out in such a way as to minimize the
chance of a judgment of discrimination being
made against the organization

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 Federal Regulation of Business
Federal Regulation in employment and
selection in particular is known under the
title of Equal Employment Opportunity
(EEO)
EEO Laws and Executive Orders
EEO laws are Federal laws designed to eliminate
discrimination in HR management decisions
EEO executive orders are statements made by the
executive branch for the same purpose, but directed
to organizations that do business with the federal
government
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 Federal Regulation of Business
EEO Laws and Executive Orders
EEO Laws and Executive Orders (2)
Title VII Civil Rights Act of 1964 (CRA)
Governs private employers, unions, employment
agencies, federal, state and local governments
Prohibits discrimination on the basis of sex, race,
color, religion or national origin
1972, expanded and strengthened
1978, amended to prohibit discrimination based on
pregnancy, childbirth or related conditions
Equal Employment Opportunity Commission
(EEOC) is the enforcing agency
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 Table 4.1 – Major EEO Laws and
Executive Orders Regarding Selection

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 Federal Regulation of Business
EEO Laws and Executive Orders
EEO Laws and Executive Orders (3)
Civil Rights Act of 1991
Amends the CRA of 1964
Addresses the extent of evidence to be proven, the
ceiling for damages for discrimination, the
adjustment of scores on selection tests based on
race, and establishes the Glass Ceiling Commission
Passed to counter a series of U.S. Supreme Court
rulings which increased plaintiff’s burdens of proof
and reduced those of defendant firms
Returned burdens of proof to their former state
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 Federal Regulation of Business
EEO Laws and Executive Orders
EEO Laws and Executive Orders (4)
Executive Order 11246
Applies to contractors who do more than $10,000 in
business with federal government
Prohibits same discriminatory acts as Title VII
Requires contractors with more than $50,000 in
business with government and more than 50
employees to develop affirmative action plans
Enforced by the Department of Labor, Office of
Federal Contract Compliance (OFCCP)

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 Federal Regulation of Business
EEO Laws and Executive Orders
EEO Laws and Executive Orders (5)
Executive Order 11478
Applies EEO policy to civilians employed by
federal government
Prohibits discrimination based on race, color,
religion, sex, national origin, handicap or age
Establishes a continuing affirmative action program
in each executive department and agency
EEOC collects data and monitors compliance in all
federal agencies

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 Federal Regulation of Business
EEO Laws and Executive Orders
EEO Laws and Executive Orders (6)
Executive Order 13087
Amends Executive Order 11478 to include sexual
orientation
Executive Order 13672
Amends Executive Order 11478 and 11246 to include
gender identity
Age Discrimination in Employment Act
(ADEA)
Applies to private industry, federal, state governments,
employment agencies, labor organizations
Prohibits age discrimination against those 40 or older
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 Federal Regulation of Business
EEO Laws and Executive Orders
EEO Laws and Executive Orders (7)
Americans with Disabilities Act of 1990 (ADA)
Prohibits discrimination against qualified people with
disabilities in all areas of employment
Enforced by the EEOC
Applies to employers with 15 or more workers
ADA Amendments Act of 2008
Passed to counteract Supreme Court judgments that
restricted and limited the definition of disability as set
out in the 1990 Act
Redefined “disability” and “major life activity”
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 Federal Regulation of Business
EEO Laws and Executive Orders
EEO Laws and Executive Orders (8)
Immigration Reform and Control Act of 1986
Provides civil and criminal sanctions for knowingly
employing an alien (person from another country) not
authorized to work in the U.S.
Prohibits knowing and intentional discrimination
against foreign job applicants
Firm required to verify the applicant’s work
authorization

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 Federal Regulation of Business
EEO Laws and Executive Orders
EEO Laws and Executive Orders (9)
Constitutional Amendments and Civil Rights
Acts of 1866 and 1871
Complaints may be pursued based on the 5th & 14th
Amendments to the U.S. Constitution, and the CRA of
1866 and 1871
Amendments prohibit deprivation of employment
rights without due process
CRA of 1866 applies to making and enforcing
contracts
CRA of 1871 applies to state and local governments
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 Federal Regulation of Business
EEO Laws and Executive Orders
EEO Laws and Executive Orders (10)
This and That Stuff
Obesity – not a protected characteristic, but morbid
obesity (100+ pounds overweight) is a disability
Smoking – not a protected characteristic; primarily a
state law issue; in some states, employers can refuse to
hire smokers
Ethnic restaurants – issue is whether an ethnic
restaurant can select only those applicants in that
specific demographic group, to be “authentic;” no
cases, but such selection likely constitutes national
origin discrimination
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 Employment Discrimination
What constitutes discrimination based on
court decisions and actions by regulatory
agencies such as EEOC
Uniform Guidelines on Employee Selection
Procedures represent the joint statement of
agencies empowered to enforce EEO laws
Describes what evidence will be considered and
how an employer may defend selection
Given “great deference” by courts
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 Employment Discrimination –
Discrimination Defined
Distinguish between adverse impact and
discrimination
Adverse impact – differences in outcomes of
selection program for demographic groups
Discrimination – no job-related explanation for
an adverse impact
Disparate Treatment
Different standards applied to various groups even
though there may not be intentional prejudice
 Ex: Not hiring women with young children

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 Employment Discrimination –
Discrimination Defined (2)
Disparate Impact
Selection standards applied uniformly to all
groups of applicants, but result is to produce
differences in the selection of various groups
Central issue is differences in the percentages of
selected applicants from different demographic
groups
A seemingly neutral requirement (high school
diploma) may disqualify many tho not necessary
for job performance
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 Employment Discrimination –
Evidence Required
The legal burdens for plaintiffs and
defendants are different depending on
whether the case is a disparate treatment or
disparate impact case
Plaintiff must establish a prima facie case
Burden shifts to defendant to rebut charges or
provide a legally permissible explanation for the
employment practices under question

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 Table 4.2 – Presentation of Evidence
in Title VII Discrimination Cases

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 Employment Discrimination –
Evidence Required (2)
Disparate Treatment Evidence
Follows the McDonnell Douglas Rule:
1. Plaintiff belongs to a protected class
2. Plaintiff applied and was qualified for the job
3. Despite these qualifications, plaintiff was rejected
4. After rejection, position remained open and
employer continued to seek applicants from people
who had the plaintiff’s qualifications
Employer provides job-based explanation
Plaintiff proves that reason given is pre-text
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 Employment Discrimination –
Evidence Required (3)
Disparate Impact Evidence
Statistical evidence shows that employment
practices negatively affect some demographic
groups; this establishes a prima facie case
The firm presents evidence that the selection
process is job related, not illegal, because of
business necessity, a BFOQ or validity
Plaintiff may then show that there is an alternate
means which has less adverse impact

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 Employment Discrimination –
The Use of Statistics
Two main types of statistics:
Stock Statistics – used to compare proportions
of various demographic groups with regard to
results of selection decisions;
Most common is between percentage of a specific
demographic group in the firm, and the percentage of
that same demographic group in an external
comparison group, at one point in time

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 Figure 4.1 –
Revised EEO-1 Form

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 Table 4.3 – Some Relevant Labor
Markets Used for Statistical Comparisons

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 Table 4.4 – Demographic Composition of
First/Mid Level Officials & Managers…

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 Employment Discrimination –
The Use of Statistics (2)
Two main types of statistics: (2)
Flow Statistics – compares proportions that
occur at two points in time
Common test is four-fifths rule; ratio of any
group must be at least 80% of the ratio of the
most favorably treated group
A common flow statistic in selection is:

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 Employment Discrimination –
Definition of Internet Applicant
The OFCCP definition:
1. Person must submit interest in employment
through the internet or electronic devices
2. Firm is considering hiring for a position
3. Person’s expression of interest indicates
he/she has the basic qualifications for the job
4. The person must not remove himself or
herself from consideration
5. Internet applicants are those use email,
resume databases, job banks, etc.
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 Uniform Guidelines on
Employee Selection Procedures
A joint statement of the EEOC, Civil
Service Commission, Dept. of Labor and
Dept. of Justice as to characteristics of
acceptable selection procedures
The primary reference for court decisions,
cited in many cases

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 Uniform Guidelines –
Determination of Adverse Impact
Address selection systems that produce
adverse impact
If none exists, only recordkeeping requirements
Rule in judging discrimination is whether
selection procedure leads to adverse impact,
demonstrated statistically
Exceptions, including four-fifths rule

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 Uniform Guidelines –
Selection Methods; Defense
Uniform Guidelines state that any method
of selection that results in an employment
decision is covered, not only scored
selection tests
Defense of Selection Program
For selection programs that have adverse
impact, the firm may cease to use them and
adopt others with no adverse impact, or may
show its practices are valid, perhaps by
validation
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 Uniform Guidelines –
Selection Requirements
Selection Requirements
Skills and abilities easily learned by training are
not acceptable selection requirements
Requirements drawn from higher level jobs
permissible only if a majority of people move to
higher level job within a reasonable time (5 yrs.)
Sets rules for the use of cutoff scores in
consideration of hiring

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 Uniform Guidelines –
Recordkeeping
Recordkeeping
All firms must keep information about
demographic characteristics of applicants and
those selected
Firms with fewer than 100 employees should
record by sex, race and national origin the
number of people selected, promoted and
terminated for each job level
Selection procedures should be described

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 Uniform Guidelines –
Comments about Uniform Guidelines
Uniform Guidelines given great weight by
judges, juries
But selection researchers and managers
have advanced our knowledge of several
issues; for example
Guidelines require validation study in each
selection site, but research demonstrates that
validity can be generalized from several
previous studies
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 Affirmative Action Programs
(AAP)
A firm would adopt an AAP in three
situations:
A) the firm is a federal contractor
B) the firm lost a court discrimination case or
has signed a consent decree, or
C) the firm is voluntarily attempting to
implement EEO principles

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 Affirmative Action Programs -
Federal Contractor
Required for those with contracts of
$10,000 or more per year
Governed by OFCCP
Requires 3 main activities:
Utilization analysis
Determine goals and timetables
Steps required to accomplish goals

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 Affirmative Action Programs-
Voluntary AAP
Voluntary programs conflict with Title VII’s
prohibition on race-based employment
decisions; reverse discrimination claims
U.S. Supreme Court has ruled that
voluntary AAPS must:
Be temporary
Have no permanent adverse impact on white
workers
Be designed to correct an imbalance between
minority and nonminority workers
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 Selection Court Cases
Table 4.5 reviews selection issues
representative of:
Demographic issues
Measurement issues
Different selection applications
Most cases tell us what is not acceptable,
rather than what is
Not possible, as selection practices are too
varied and interrelated
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 Table 4.5 – Key Issues in
Major Selection Court Cases

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 EEO and
Job Performance Measurement
Performance Measurement and the Uniform
Guidelines (UG)
Section 2.B – UG applies to tests and other
selection procedures used as the basis for any
employment decisions
Any procedure that contributes to any
employment decision governed by UG

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 EEO and
Job Performance Measurement (2)
Performance Measurement and the Uniform
Guidelines (UG) (cont.)
Section 14.B(3) –
scores on tests not to be treated as input to measure
job performance
Performance measure must represent important or
critical job behaviors
Some measures (absenteeism, tardiness) can be used
without referring to job performance
Section 15.B(5) – data used to develop job
performance criterion must be made explicit
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 EEO and
Job Performance Measurement (3)
Court Decisions Addressing Performance
Measurement
Rulings made on basis of features of the
appraisal systems
Primarily concerned with fairness of process
Studies have found differences in scores
between whites and blacks
Adverse impact may occur but not be indicative of
discrimination

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 EEO Summary
Basis of Discrimination
Race, color, religion, sex, national origin, age
(over 40), physical and mental handicaps
Evidence of Discrimination
Is a pattern of discrimination visible over time?
Options of the Organization
If large demographic selection differences:
Discontinue current procedures, develop alternatives
Conduct a validation study to support the procedures
and show they are job-related
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