Academic journal article Public Personnel Management

Factors Related to Court References to Performance Appraisal Fairness and Validity

Academic journal article Public Personnel Management

Factors Related to Court References to Performance Appraisal Fairness and Validity

Article excerpt

This study was designed to test whether U.S. appellate court judges' concern for validity or fairness of the performance appraisal process is a function of their Ideology (more liberal vs. more conservative) or the type of charge (gender or age discrimination). We hypothesized that liberal courts' written opinions are more likely than conservative courts to focus on fairness and conservative courts are more likely to focus on validity. We also hypothesized that fairness issues are just as likely to dominate court opinions in gender as in age discrimination cases. Using LEXIS computerized search, 39 U.S. appellate court cases from 1992 to 2000 were identified for the study: 21 were heard by the 4th Circuit, 18 by the 9th Circuit; 23 were age discrimination cases and 16 were gender discrimination cases. We found support for both hypotheses.

Performance appraisal information may used in litigation by the party (i. e., the employee) claiming to have been a victim of discriminatory practices and/or the defendant (i. e., the employer) to substantiate their claims. The judge or judges hearing the evidence must consider a wealth of information to form their decisions. This study was designed to determine whether U.S. appellate court judges are more concerned with validity or fairness of the performance appraisal process depending on their ideology or the type of charge. Information regarding circuit courts' concerns (and differences among the courts) could benefit employers, as well as possible employee/plaintiffs, as they identify evidence and frame their arguments.

Judges may focus primarily on the statistical validity of the performance appraisal procedures, they may primarily examine the equity and fairness of the process (i.e. procedural justice) and the outcomes (i.e. distributive justice), or they may give equal weight to validity and fairness. The issue of fairness appears to be a major concern for the U.S. appellate courts, (1) but the Uniform Guidelines on Employee Selection Procedures (2) seem to stress technical validity. Human resources professionals and corporate attorneys advising them would be well served if they had more information about the factors affecting judicial reference to validity or fairness evidence. Our purpose was to test whether reference to validity or fairness is associated with judicial ideology. Specifically, we expected that courts characterized as more liberal or conservative would be more or less likely to refer to fairness or validity reasons in their written opinions. Public policy and legal regulations continue to evolve and findings of earlier research (3) must be revisited when a significant change has occurred. The Civil Rights Act of 1991 amendments to the Civil Rights Act of 1964 may have affected the rationales used by the courts.

Judicial reference to validity or fairness should not be confused with the theory of discrimination applied by the plaintiff. Charges of discrimination may be based on the theory of disparate impact or disparate treatment. Judicial concerns about validity and/or fairness may arise independent of the theory applied. Some evidence indicates that the theory of disparate impact may be used less often. (4) Only 7.1 percent of Werner and Bolino's (5) sample of 295 cases were based on disparate impact. In addition, the theory applied does not appear to be related to the judicial decisions. (6) In other words, judicial decisions in favor of the plaintiff (or defendant) do not appear to be more frequent when disparate treatment (disparate impact) is charged.

The Civil Rights Acts of 1991 could be interpreted to require validity evidence in disparate impact cases. After an employee makes a prima facie case of disparate impact, the burden of persuasion is shifted to the employer to "demonstrate that the challenged practice is job-related ... and consistent with business necessity." (7) However, some judges' remarks seem to indicate that they may not expect or rely on evidence supporting the performance appraisal's validity. …

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