Establishing the Validity of Employment Standards

By Sauls, John Gales | The FBI Law Enforcement Bulletin, August 1995 | Go to article overview

Establishing the Validity of Employment Standards


Sauls, John Gales, The FBI Law Enforcement Bulletin


A law enforcement manager learns that a Federal court has ruled that his department discriminated against minorities in hiring police officers. The court based its finding on the department's use of a written cognitive test on which the pass rate for minorities is significantly lower than the pass rate for nonminorities. The ruling astonishes the manager because he knows that an industrial psychologist under contract to the department created the test. This psychologist testified that the test is a valid selection instrument.

The psychologist's report indicates that a correlation of .09 exists between scores on the test and supervisors' ratings of officers serving on the force. The psychologist assured the court that this result is statistically significant and serves as evidence that the test is useful in predicting the future performance of officer candidates. Unfortunately, the court's review of the test to assess its validity as a selection instrument was more extensive than mere consideration of the opinion of the department's expert.

This article discusses the standards used by courts to evaluate the legality of employment tests,(1) which have a disparate impact on groups of persons based upon their race, color, national origin, religion, or sex. It begins with a brief discussion of the legal concepts of "disparate impact" and "business necessity." It then examines in detail "validation," a scientific method that courts have adopted as a guide for assessing the business necessity of tests. The article concludes with recommendations for managers required to navigate this complicated overlap of discrimination law, industrial/organizational psychology, and personnel practices.

DISPARATE IMPACT AND BUSINESS NECESSITY

In 1971, a unanimous Supreme Court issued its opinion in the case of Griggs v. Duke Power Co.,(2) holding that an employer's use of a high school diploma requirement and two standardized written tests, each of which disqualified a higher percentage of blacks than whites, for purposes of hiring and assigning employees to laborer positions violated Title VII of the Civil Rights Act of 1964.(3) Under Griggs, a person claiming that an employment standard has a disparate impact based on race, color, sex, national origin, or religion must demonstrate factually a disparity of legal consequence before the law will require an employer to demonstrate "business necessity."(4) A person who proves such a disparity establishes a "prima facie" case of discrimination.

In evaluating whether an employment standard has a disparate impact, a statistical assessment must be made of a particular group's success rate in regard to the standard, as compared to the success rate of other groups. Where the standard creates no disparity, no demonstration of business necessity is required.

For example, in Drake v. City of Fort Collins,(5) an unsuccessful police officer candidate challenged the legality of the department's requirement of 2 years of college credits, alleging that the standard had a disparate impact on blacks. Assessment of the department's statistics revealed that the standard eliminated only 12.5 percent of black candidates, compared to elimination of 16 percent of candidates who were not black. The court held that no assessment of the educational requirements business necessity was needed in the absence of a showing of statistical disadvantage.

However, the detection of some statistical disparity requires a determination as to whether the disparity is legally significant. Because some degree of disparity is probably inherent in almost any standard, the rule of four-fifths has become a "rule of thumb" for measuring the legal significance of detected disparities. This rule provides that when the success rate of a group is less than 80 percent of that of the most successful group, then the less successful group is disadvantaged to a legally significant extent.(6)

Announcing business necessity as the legal yardstick for assessing the legality of employment standards, the Griggs Court held that an employment practice was prohibited if it operated to exclude blacks and could not be shown to be related to job performance. …

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