The Supreme Court on Discrimination
The Supreme Court has recently handed down two important decisions that are relevant to employers. One on age discrimination (Gross vs. FBL Financial Services) and the other on the use of employment tests (Ricci vs. DeStefano). In the first case, employers have been given more leeway in firing. In the second, the court has confirmed the shifting of the burdens of proof in adverse impact cases, while also saying that the potential of lawsuits is not a sufficient reason to throw out a valid test.
In Gross, the court ruled that plaintiff's would have to prove that age was the deciding factor when firing someone, as opposed to one of many factors. This significantly increases the burden on plaintiffs and will make it easier for employers to cut costs during layoffs.
In Ricci, the city of New Haven was caught between a rock and a hard place. They had done a good job of developing a valid promotional test, but the results of the test had adverse impact against African-Americans and Hispanics. Knowing they'd be sued regardless of what action they took, they decided to throw out the test, fearing a suit from the group that failed rather than the whites who passed.
The court ruled that fear of a lawsuit was not a good enough reason to discriminate against the whites who passed the test. Just as important to employers, they also confirmed that when the burden of proof shifts to the employer after adverse impact has been established the validity of the test is a legitimate defense. In other words, it is legal to use a valid, neutral selection process even if groups (race, gender, or age) pass have different pass/fail rates. This then shifts the burden of proof back to the plaintiff to show that there are other equally valid options available that have less adverse impact.
However, be warned that the dissenters were fairly critical of the validation process and whether the city had fully looked into alternative selection methods (specifically, Assessment Centers) that would have been equally valid, but with less adverse impact. From a hiring perspective, this reinforces the need to do careful job analyses and validation work when implementing pre-employment tests.
For more information on the development and implementation of valid selection processes, please contact Warren Bobrow.
The Value of Probing Questions
In keeping with the hiring and selection theme, let’s talk about one critical aspect of an interview – the value of probing questions.
Especially with today’s high unemployment rate, there will be more candidates for each job and they will be desperate to convince you to hire them. In some cases, they will inflate their qualifications and exaggerate their abilities.
Your best defense against being bamboozled by these candidates is to have a sound interview process that is based on a thorough understanding of the job, behavioral questions to determine the candidate’s experience, and skilled interviewers who know how to use probing questions to uncover the candidate’s actual level of ability.
- Ask for specific examples to learn about the details.
- Ask them why they did what they did and what the results were.
- Make sure they have a complete story, not just a good introduction or overview.
The more details and examples you ask for, the more likely you are to select the candidate who can perform the necessary tasks and fit into your organization.
Contact Kammy Haynes for help with creating effective interviews, training your interviewers or learning how to improve your interview process.