High-performance Workforce

Kim Lerner recently published an entry about legal considerations when conducting background checks. The article about negligent hiring started me thinking about the apparent widespread use of such lawsuit prevention screens when employers routinely neglect to use screens to maximize individual and organizational performance.

Preventing workplace violence and other terrible events are important, but it should be kept in mind that they are outlier events. Humans often over-estimate the likelihood of crime based on over-exposure in the media, believing that they are much more likely to be a victim than is reasonable. Additionally, the average award estimates for negligent hiring do not seem well documented and neither do the percentage of lawsuits lost. I have no doubt that they are fairly high, but I would prefer to see documentation of the cost and loss estimates from researchers rather than employment screening vendors.

These negligent hires do occur. Academics have largely ignored this problem because the rarity of workplace violence makes the such studies difficult. Often, academics (such as Harris & Keller (2005)) more or less advocate hiring of ex-felons in order to reduce recidivism. In their article “Ex-offenders need not apply”, Harris and Keller found that:
(a) several risk factors must be present in order to be predictive – so one factor, such as a previous conviction, was not predictive of future behavior;
(b) criminals do not “specialize” in one criminal act and are not likely to be repeat the same crime;
(c) ex-criminals are more likely to have cognitive, personality, and social deficits that make them questionable performers;
(d) criminal background checks are haphazard due to a patchwork of state laws;
(e) research does not support the notion that ex-criminals perpetrate workplace crimes more often than “normal” employees; and
(f) placement of multiple ex-criminals together was more likely to induce criminal behavior.

Organizations have clearly come to the conclusion that mitigating risk by implementing background checks is often necessary, much like drug tests. However, instead of merely testing employees for drugs and searching their background for criminality, HR departments should make the case that the prevention of lawsuits and accidents are not any more important that screening to maximize individual performance. Legal departments have a responsibility to reduce risk, and HR departments do as well – but HR departments also have a responsibility to maximize the effectiveness of the workforce.

If your company is considering implementing such background checks, make sure to argue that it is not only important to screen out the duds, but to select for your next superstar. Your company’s future may depend on it.

I wrote a few weeks ago that the case law supported the city of New Haven in avoiding creating a basis for adversely impacted minorities to sue.  Today, the Supreme Court has changed the interpretation of Title VII.  Although I am not a lawyer, here are the relevant holdings by the Supreme Court, with my explanations:

The racial adverse impact in this litigation was significant, and petitioners do not dispute that the City was faced with a prima facie case of disparate-impact liability. The problem for respondents is that such a prima facie case—essentially, a threshold showing of a significant statistical disparity, Connecticut v. Teal, 457 U. S. 440, 446, and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the test results. That is because the City could be liable for disparate impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. Based on the record the parties developed through discovery, there is no substantial basis in evidence that the test was deficient in either respect.

Take home message: Job relatedness in promotion and selection as a viable defense in discrimination has been strengthened in this case by the Court.

The City’s assertions that the exams at issue were not job related and consistent with business necessity are blatantly contradicted by the record, which demonstrates the detailed steps taken to develop and administer the tests and the painstaking analyses of the questions asked to assure their relevance to the captain and lieutenant positions. The testimony also shows that complaints that certain examination questions were contradictory or did not specifically apply to firefighting practices in the City were fully addressed, and that the City turned a blind eye to evidence supporting the exams’ validity.

Take home message: Again, job relatedness in promotion and selection as a viable defense in discrimination has been strengthened in this case by the Court.

Respondents also lack a strong basis in evidence showing an equally valid, less discriminatory testing alternative that the City, by certifying the test results, would necessarily have refused to adopt. Respondents’ three arguments to the contrary all fail. First, respondents refer to testimony that a different composite-score calculation would have allowed the City to consider black candidates for then open positions, but they have produced no evidence to show that the candidate weighting actually used was indeed arbitrary, or that the different weighting would be an equally valid way to determine whether candidates are qualified for promotions. Second, respondents argue that the City could have adopted a different interpretation of its charter provision limiting promotions to the highest scoring applicants, and that the interpretation would have produced less discriminatory results; but respondents’ approach would have violated Title VII’s prohibition of race-based adjustment of test results. Third, testimony asserting that the use of an assessment center to evaluate candidates’ behavior in typical job tasks would have had less adverse impact than written exams does not aid respondents, as it is contradicted by other statements in the record indicating that the City could not have used assessment centers for the exams at issue. Especially when it is noted that the strong-basis in-evidence standard applies to this case, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) statements in the record.

Take home message: Get the selection procedure right the first time, or suffer through the legal process to determine if discrimination has occurred. Modifying the process after the fact is inappropriate, and re-testing implies that race in being taken into account.

Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

Take home message: Modifying the process after the fact is inappropriate, and re-testing implies that race in being taken into account. If discrimination occurred, then it will go to court; but interrupting the results of the test to prevent a law suit is inappropriate.

The practical outcome: This ruling strengthens employers’ hands by emphasizing job-relatedness exemptions and prohibiting the consideration of race in the selection and promotion outcomes. It is now more difficult for plaintiffs to prevail against employers who have designed promotion tests in accordance with job-relatedness principles. This ruling is somewhat disingenuous because of the need to evaluate the outcome based on the four-fifths rule for disparate impact on minorities. Ultimately, though, the ruling isn’t a huge change. The ruling does make it clear that courts will decide when there is adverse impact by removing employers’ discretion to scrap a selection procedure after a prima facie case of disparate impact has occurred. The Court essentially placed the burden on plaintiffs rather than the employer to take action.

The case caused a 5-4 split on the Supreme Court. It seems likely for this case to have determined the high-water mark of Title VII case law, as Court interprets the culture of the United States as reducing the need for preventative discrimination law. The Court is therefore increasingly inclined to allow discrimination law be eroded to some degree.

Recommendations for hiring and promotion practices: Create selection procedures in order to not discriminate, and if you become legally entangled, stick to your guns that you used job-relatedness to avoid the problem. If the procedures were followed correctly, promotions and hiring based on such tests will ultimately shield you in court.