Meeting of May 16, 2007 - on Employment Testing and Screening
The Uniform Guidelines on Employee Selection Procedures2 define a “selection procedure” as:
Any measure, combination of measures, or procedure used as a basis for any employment decision. Selection procedures include the full range of assessment techniques from traditional paper and pencil tests, performance tests, training programs, or probationary periods and physical, educational, and work experience requirements through informal or casual interviews and unscored application forms.3
Performance appraisals are the most litigated selection procedure or “test” now and for the foreseeable future. They are clearly a “selection procedure” under the Uniform Guidelines.4 They are usually the key documents in reductions-in-force (“RIFs”) or cases of terminations with adverse impact and often in promotion and compensation analyses, especially class-based.
Under the Age Discrimination in Employment Act5 (the “ADEA”), performance appraisals need only be “reasonable” as to the job,6 not per se demonstrably job-related under Griggs and the Uniform Guidelines.7 By contrast, under Title VII of the Civil Rights Act of 19648 (“Title VII”), performance appraisals must be demonstrably job-related if there is adverse impact against a relevant protected group. Content validity will be relied upon almost always to prove job-relatedness of performance appraisals.
A professional job analysis is the safest course for employers, though some performance measures are so self-evidently job-related as not to require a formal job analysis. Examples of the latter could include factors such as flight simulator results for commercial airline pilots, firearms qualification for some law enforcement personnel, water-related first-aid skills for lifeguards, reliable attendance for some jobs, driving skills tests for commercial drivers, bilingual fluency for translators, and the like.
The EEOC has never issued guidance on “best practices” for either job analyses or performance appraisals. Both would be potentially helpful for employers, human resources professionals and industrial psychologists. Focusing on performance appraisals, I respectfully suggest that best practices can include:
1. The assistance of my colleague, Beth Moeller, is gratefully acknowledged.
2. 29 C.F.R. § 1607.1, et seq. (the “Uniform Guidelines”).
3. 29 C.F.R. § 1607.16(Q).
4. See id.
5. 29 U.S.C. § 621, et seq.
6. In Smith v. City of Jackson, 544 U.S. 228 (2005), the Supreme Court held that, if an employer is able to articulate a “reasonable factor other than age” upon which the challenged employment decision was based, a plaintiff may prevail on a disparate impact claim under the ADEA only if the plaintiff can show that the employer’s articulated non-age based factor was “unreasonable.” The Court specifically held that Title VII’s “business necessity test,” which asks whether there are other ways for the employer to achieve its goals that result in lesser adverse impact on a protected class, is not part of the inquiry under the ADEA. See also Pippin v. Burlington Resources Oil & Gas Co., 440 F.3d 1186 (10th Cir. 2006); Meacham v. Knolls Atomic Power Laboratory, 461 F.3d 134 (2d Cir. 2006); Durante v. Qualcomm, Inc., 2005 WL 1799416 (9th Cir. Aug. 1, 2005); Armstrong v. Blair, 2006 WL 2599770 (W.D. Okla. 2006).
7. Griggs v. Duke Power Co., 401 U.S. 424, 431-2 (1971) (Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity.”)
8. 42 U.S.C. § 2000e, et seq.
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