Jim Higgins - Avoiding Litigation Risk In Selection: Tips for Employers

I have been considering the Wackenhut case that was discussed in the OFCCP News Release dated 06/09/2010 and wondering how many employers run the same risks--completely unnecessarily. Consider what happened to Wackenhut. They were required to pay a total of $290,000 in back pay to 446 African Americans who were not hired (at least partly) on the basis of their score ona personnel selection test.

In examining item and test performance data on the test used by Wackenhut, the OFCCP determined that there was statistically significant adverse impact against African Americans in violation of Title VII of the Civil Rights Act of 1964. Because of these group differences, the OFCCP demonstrated that Wackenhut was engaging in systemic discrimination. In addition to the consent decree requiring the payment of $690,000 in back pay to the applicants, Wackenhut was required to hire 41 of the original applicants into traditional security positions.

Dr. Patricia Shiu, Director of the OFCCP, noted that "This...should put all federal contractors on notice that the Labor Department is serious about eliminating systemic discrimination."

Wackenhut could have completely avoided this situation if they had followed the appropriate steps for validating their personnel selection tests. They should have spent the relatively short amount of time to conduct a job analysis that contained the kinds of quantitative data that would help them identify the critical job duties as well as the critical knowledge, skills, and abilities required to perform those duties. Then they could have documented the extent to which each question on their test was "linked to" or "measured" one or more critical knowledge, skills or abilities required on the job. Once they administered their test, they should have conducted a statistical analysis to determine whether the test scores exhibited adverse impact against employees based on those characteristics protected under Title VII of the Civil Rights Act. Finally, they should have documented a review of the available test options to demonstrate that there were no other testing formats that were equally valid and which were feasible given the employer's current situation.

These steps are easy and well worth the effort. Wackenhut could have saved up to 90% of what they paid in back pay and avoided the negative press that comes with being found to discriminate.

To learn more about how to validate pre-employment tests or for assistance conducting validation studies to minimize your own company's legal exposure, visit: http://www.affirmativeactionservices.com/.