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Creating Defensible Selection Procedures. Bryan Baldwin State of Washington Department of Personnel May 3, 2006. IPMA-HR Western Region Annual Training Conference. Defensible Selection. Overview/Objectives. By the end of today, you will know: What hiring practices can be challenged.

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Bryan Baldwin State of Washington Department of Personnel May 3, 2006

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Creating Defensible

Selection Procedures

Bryan Baldwin

State of Washington

Department of Personnel

May 3, 2006

IPMA-HR Western Region Annual Training Conference

overview objectives

Defensible Selection


By the end of today, you will know:

  • What hiring practices can be challenged.
  • What you are defending against.
  • What the relevant laws are.
  • What is meant by “validity.”
  • Why we should care about good selection.
  • What you can do to help ensure defensibility.
selection procedure

Defensible Selection

“Selection Procedure”
  • Uniform Guidelines on Employee Selection Procedures:
    • “Employment decisions include but are not limited to hiring, promotion, demotion, membership…referral, retention, and licensing and certification…Other selection decisions, such as selection for training or transfer, may also be considered employment decisions…”
  • Connecticut v. Teal (1982)
  • Professional guidance
    • APA Standards
    • SIOP Principles
  • Bottom line: Anything that narrows the talent pool
why do we spend so much time on assessment

Defensible Selection

Why do we spend so much time on assessment?
  • Increases productivity of workforce
  • Helps prevent errors from being made
  • Increases employee satisfaction and reduces turnover
    • Better fit
    • Processes are more consistent and fair
  • Improves organization’s reputation
    • More attractive as employer
  • Helps ensure we treat people fairly
it s not just about defensibility

Defensible Selection

It’s not just about defensibility

“Many lawyers think of test validation studies as just a bunch of paperwork that benefits no one but the psychologists…The cost of test validation is normally insignificant compared to the benefits received, and these benefits continue for each year that the test is used—and beyond, to the extent that employees selected by the test remain on the job.”

- Seberhagen (1990)

what are we defending against

Defensible Selection

What are we defending against?
  • Discrimination complaints
    • Disparate treatment
    • Disparate/adverse impact
  • Privacy violations
  • Improper medical tests
  • Negligent hiring/failure to perform due diligence
  • Violations of merit system rules
  • Violations of bargaining contracts

Defensible Selection

  • Withstands scrutiny from:
    • Applicants/candidates
    • Peers
    • Union representatives
    • Regulatory agencies
    • Attorneys
    • Jury
    • Judge
  • Something you could stand behind
  • Something you wouldn’t mind seeing in the paper
the laws

Defensible Selection

The Laws
  • Title VII
  • Section 1981/1983
  • ADEA
  • ADA and Rehabilitation Act
  • FCRA
  • Immigration Reform and Control Act
  • Executive Order 11246
  • State and local laws
  • Employment torts

Defensible Selection

Regulatory Agencies

  • Equal Employment Opportunity Commission (EEOC)
  • U.S. Department of Justice (DOJ)
  • U.S. Department of Labor (DOL)
    • OFCCP
    • VETS
  • Federal Trade Commission (FTC)
  • U.S. Department of Homeland Security
  • State agencies, for example:
    • California Department of Fair Employment and Housing
    • Washington Human Rights Commission
    • Oregon Bureau of Labor & Industries
  • Local agencies
internet applicants

Defensible Selection

“Internet Applicants”
  • New OFCCP regulations
    • Cover certain federal contractors
    • Require collection of demographic information
    • Require tracking of database searches
    • Require qualifications to be job-related
    • Should be thoroughly reviewed by covered employers
  • Pending EEOC regulations (UGESP Q&A)
    • Will the final version mirror OFCCP regulations?
    • Applies to more employers
disparate treatment

Defensible Selection

Disparate Treatment
  • Inconsistent/unfair application of policy or procedure
  • Employer must give a job-related, legal reason why they did what they did
  • Plaintiffs and judge/jury will look for any situations where you treated “similarly situated” individuals differently
  • Serious liability for organization and, in some cases, the individual
disparate adverse impact

Defensible Selection

Disparate/Adverse Impact
  • Policy/practice applied same way to all groups but has the effect of discriminating against some
  • Classic examples: diplomas, height
  • Common measure: “4/5ths rule”
  • Employer must show selection process was job-related and consistent with business necessity
  • Court/jury will look for evidence of validity per the Uniform Guidelines

Defensible Selection


  • Bona Fide Occupational Qualification (BFOQ)
    • Religion, sex, national origin, or age only
    • Must be “reasonably necessary to the operation of that particular business or enterprise”
  • Bona Fide Seniority System (BFSS)
  • Affirmative Action
    • Diversity can be a compelling interest
    • AA must be narrowly tailored to achieve goals
    • Race/ethnicity can be considered a “plus” only
    • Can take many forms
why do applicants complain

Defensible Selection

Why do applicants complain?
  • They perceive a violation of Title VII of the federal Civil Rights Act of 1964 as amended in 1991
  • The exam didn’t pass the smell test (wasn’t “face valid”)
  • They feel they weren’t treated fairly
  • They’ve heard other applicants felt the same
  • They like to complain

Studies have linked procedural justice to:

  • Recommending the employer to others
  • Perceptions of fairness
  • Applicants’ intention to take a job
  • Organizational attractiveness
  • Turnover intentions
  • Filing complaints

Defensible Selection

Procedural Justice

Procedural justice – the fairness of the process used to select applicants/new hires (not the result)

applicant perceptions

Defensible Selection

Applicant Perceptions

InstrumentFavorability Rating

Interviews Higher

Work sample



Cognitive ability

Personality tests


Honesty tests Lower

Source: Hausknecht et al. (2004)


What is “validity”?

Defensible Selection

sources of validity

Defensible Selection

Sources of Validity

Uniform Guidelines: “The 3 C’s”:

  • Relationship between scores and job performance
    • “Criterion-related validity”
  • Test content matches job content
    • “Content validity”
  • Test is measuring abstract concept (dependability)
    • “Construct validity”
  • Validity generalization
validity evidence

Defensible Selection

Validity Evidence

“The closer the content and the context of the selection procedure are to work samples or work behaviors, the stronger is the basis for showing content validity. As the content of the selection procedure less resembles a work behavior…the less likely the selection procedure is to be content valid, and the greater the need for other evidence of validity.”

– Uniform Guidelines, 14(C)(4)


Defensible Selection

Charges in 2005 (thousands)

Source: EEOC


Defensible Selection

2005 EEOC Charges Filed by Type

Source: EEOC


Defensible Selection

Potential Penalties

  • 1. Equitable relief
    • Hiring, reinstatement, back pay, legal fees, etc.
    • Adverse impact or disparate treatment
  • 2. Legal relief
    • Compensatory damages, e.g., pain and suffering
    • Punitive damages: to punish the employer
      • Available only against private sector employers
    • Available only in disparate treatment cases
    • May not be available for violating state laws (e.g., AZ)
  • 3. Limits
    • Title VII, ADA, ADEA: see next slide
    • State laws vary (e.g., unlimited in CA civil case)
    • Section 1981 and 1983: unlimited

Defensible Selection

Title VII, ADA, and ADEA









But validation is so expensive!

Average cost of content validation:


Median settlement in discrimination case, ’96-’02:


Median 2003 compensatory award in discrimination case:


Defensible Selection

Sources: Seberhagen (1990); Jury Verdict Research

first reality

Defensible Selection

  • No selection system is perfect
  • Someone can always complain

Defensible Selection

How to Protect Yourself

  • Job analysis, job analysis, job analysis

“People will continue to measure the wrong things as long as they fail to define what they want to measure.” - Guion (1998)


Defensible Selection

KSA-Selection Method Matrix


Defensible Selection

  • 2. Use “good” exams
    • Based on results of job analysis
    • Reliable
    • Valid
    • Structured
    • Free of obviously illegal questions
    • Weighted according to the job analysis
    • Bias for work sample/performance tests
    • Beware on-line tests—especially personality tests

Defensible Selection

What works?

Supervisors’ Opinion Validity

Sources: Schmidt & Hunter (1998); Roth et al. (2005); Aamodt (1998); U.S. MSPB (2005)


Defensible Selection

Looking in the mirror

Study of 959 HR professionals

QuestionAnswer% Wrong

1. The most valid employment interviews are designed around each candidate’s unique background.

2. Although people use many different terms to describe personalities, there are really only four…as captured by the Myers-Briggs Type Indicator (MBTI).

3. Being very intelligent is actually a disadvantage for performing well on a low-skilled job.

4. “Integrity tests” don’t work well in practice because so many people lie on them.

5. Companies that screen job applicants for values have higher performance than those that screen for intelligence.

Source: Rynes et al. (2002)

adverse impact

Defensible Selection

Adverse Impact


Sources: Several, including Aamodt (2006), Roth et al. (2001), and Hough et al. (2001)


Defensible Selection

  • Focus in-depth validation on certain jobs first
  • Do not rely on one method of assessment—use a “whole person” approach
  • Minimize the reading level
  • Document, document, document

Defensible Selection

Documenting the Selection Process

  • Job analysis and critical behaviors/KSAs
  • Decision process for choice of selection methods
  • Selection method(s) development or purchase
  • Rating scales and benchmarks
  • Recruitment activities
  • Applicant responses (can summarize)
  • Reference/background check information
  • Final selection process
  • Record retention period: Varies
  • Recommend three years

Defensible Selection

  • Train and be trained
      • Hiring supervisors
      • Staff
      • Candidates
  • Be consistent & courteous with your applicants
  • Establish & follow clear policies & procedures
  • Establish an exam review procedure

Defensible Selection

11. “Sell” your exam to applicants

12. Pre-test

13. Look at your SMEs

14. Do background and reference checks

background and reference checks

Defensible Selection

Background and Reference Checks
  • Background checks are database checks
  • Reference checks are real-time interviews
  • Check personnel files when available
  • Obtain a release
  • Give yourself enough time
background checks

Defensible Selection

Background Checks
  • Examples:
    • Criminal background checks
    • Credit checks
    • Educational/employment verification
    • Driving record
  • Be very wary of using arrest records to deny job
  • Analyze conviction records—no blanket policies
  • Tie denial of employment to nature of job
  • Follow requirements of the FCRA and other laws
  • May be required for certain jobs (check laws)
  • Not to be undertaken lightly
reference checks

Defensible Selection

Reference Checks
  • Do them as part of your due diligence
  • Ask job-related questions
  • Ask follow up questions
  • Use a standard form
  • Consider assigning to specialists
  • Document questions and answers
  • Off-list checks

Defensible Selection

  • Provide candidates enough time
  • Keep an eye on things – ongoing evaluation
  • Periodically audit your examination process
  • Set your pass points systematically

Defensible Selection

Where do we set the pass point?

“[cutoff scores]…should normally be set as to be reasonable and consistent with normal expectations of acceptable proficiency within the work force.”

- Uniform Guidelines on Employee Selection Procedures (1978)

“[cutoff scores should be] reasonable and consistent with normal expectations of performance.”

- Craig v. County of Los Angeles (1980, 9rd Cir.)

“…under [the Civil Rights Act] a discriminatory cutoff score on an entry level employment examination must be shown to measure the minimum qualifications necessary for successful performance on the job.”

- Lanning v. SEPTA (1999, 3rd Cir.)


Defensible Selection

  • Check immigration status
    • Must verify authorization to work in U.S.
    • Penalties for non-compliance can be steep
    • Estimates of unauthorized workers up to 30% in some industries (e.g., construction)
  • Consider applicant privacy and medical testing issues
privacy violations

Defensible Selection

Privacy Violations
  • Polygraph tests
    • Public entities often exempt from laws (esp. police)
    • Be very wary of relying on them
  • Personality tests (e.g., Target, Staples cases)
  • Drug testing
    • Generally supported if administered to all applicants
    • Tie to job responsibilities (e.g., operates vehicle)
    • Safer for applicants than current employees
    • May be required for some jobs (e.g., transportation)
    • Current use v. rehabilitated addicts & alcoholics
  • Criminal/credit history
    • Follow requirements of the FCRA
  • Be aware of state/local laws
improper medical tests

Defensible Selection

Improper Medical Tests
  • Pre-employment questions
    • “Are you able to perform the essential functions of this job, with or without reasonable accommodation?”
  • EEOC definition of medical test
  • Medical inquiries/tests must come after job offer
  • Karraker v. Rent-A-Center (2005)
  • Miller v. City of Springfield (1998)

Defensible Selection

  • Use broad, inclusive recruitment strategies that target qualified applicants
  • Use standard applications, not resumes
  • Don’t ignore the Uniform Guidelines
  • Involve multiple stakeholders
  • When in doubt … seek help !!

How can I keep up on all these changes in the law?

Defensible Selection

Electronic newsletters


Defensible Selection


  • Links
  • Uniform Guidelines:
  • OFCCP:
  • EEOC:
  • Recommended Reading
  • Testing and assessment: An employer’s guide to good
  • practices. Available at
  • 2. Gutman, A. (2000). EEO law and personnel practices.
  • 3. Brannick & Levine (2002). Job analysis.
  • 4. Guion, R.M. (1998). Assessment, measurement, and
  • prediction for personnel decisions.
  • 5. Rosen, L. (2005). The safe hiring manual.