Valid Selection and Performance Appraisals DO Make a Difference!. Dr. Stan Malos, J.D., Ph.D. Author/Title of Article:.
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Malos, S. B. (2005). The importance of valid selection and performance appraisal: Do management practices figure in case law? In F. Landy (Ed.), Employment Discrimination Litigation: Behavioral, Quantitative, and Legal Perspectives, pp. 373-409. San Francisco: Jossey-Bass.
Allen v. City of Chicago: Police promotional process that adversely impacted minority candidates upheld due to job analysis and content validation in accordance with the UGLs
Williams et al. v. Ford Motor Co.: Ability test for production workers that adversely impacted minority candidates upheld due to job analysis, content & criterion validation, and validity generalization in accordance with the UGLs
Ass'n of Mexican-American Educators v. State of California: Defensibility of basic skills test (reading, writing, math) for public school teachers that adversely impacted minority candidates upheld due to adequate evidence of reasonable test development and cut scores in accordance with the UGLs
Hawkins v. Pepsico: Termination for performance based on allegedly discriminatory PA upheld; case just an "ordinary workplace disagreement" where rater/ratee races differed
Spears v. Department of Corrections: Reduction of appraisal from "highly successful" to "successful" (plaintiff quits and claims constructive discharge) upheld due to well-accepted rule: “negative” appraisal w/no tangible harm not actionable
Cullom v. Brown: Delay in minority employee's promotion due to wrongly favorable PA, without which employee would have known sooner that performance had to improve, not actionable (no harm); retaliation claim also fails where bad employee promoted due to undeserved favorable rating!
Mayer v. Nextel: Failure to put over-40 employee on PIP prior to firing when others were upheld; only managers who failed to meet quota were placed on PIPs, and plaintiff in fact met quota
Sauzek and Koski v. Exxon Coal USA: Lower appraisal scores prior to RIF, allegedly suggesting age-related pretext, upheld; scores for those over & under 40 fluctuated about the same
*Cerutti et al. v. BASF: RIF criteria developed pursuant to new business plan designed to "repopulate" company with those who could "do more with less“ -- but which disregarded prior favorable PAs-- upheld due to plaintiffs' inability to establish qualifications under new criteria (thus rendering pretext moot -- for failure to make out a prima facie case!)