Discrimination refers to the unlawful use of any selection procedure that has an adverse impact on the hiring, placement, or promotion of people based on sex, race, or ethnicity and not on any valid means. It must be pointed out that all tests and standards discriminate — their lawfulness however, is based on their demonstrated job-relatedness.
Job relatedness means that the test score must be predictive of the ability to perform the essential functions of the job and be of business necessity. The test standard must be able to predict those who can do the job and those who can not. Norm-based standards, arising from any vendor or even in-house will fail the job-relatedness requirement. This is due to the nature of norms - which only describe how a group of people performed on a particular test. In the absence of a validation procedure, even norms developed on an incumbent workforce are not predictive of the ability to the job, just descriptive of those in the job.
Same job, same standard
Same job, same standard is essentially the effect of Section 106 of the revised Civil Rights Act.
"It shall be unlawful employment practice for a respondent, in the connection with the selection of referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex or national origin."
Again, norm-based standards, frequently those that are gender-adjusted require a hard look in light of Section 106. As an aside, the position of the prior DOJ's Employment Litigation Division administration publicized a position that was not necessarily consistent with the letter of the law. Current DOJ leadership have indicated a willingness to enforce Section 106 as it is written.
Adverse Impact (or disparate impact) Title VII The Civil Rights Act of 1964 (CRA) prohibits the use of any selection device that results in disparate or adverse impact based on race, color, national origin, gender, or religion unless the selection device was demonstratively job- related. Disparate impact exists if the success rate for one of the protected classes is less than 80% of the success rate of the most successful group. For example, if 90% of the men pass a given test, the test will demonstrate disparate impact if the success rate for the women is less than 72% (90% x 80% = 72%.)
If disparate impact exists, the employer would be violating federal law unless the agency can show that the standard is job-related. If the standard is job-related, then it can be utilized even if it results in disparate impact. An appeals judgment (USDOJ v. SEPTA, U.S. Court of Appeals, 3rd Cir. 2000) for the Lanning et. al. vs. SEPTA case ruled that an absolute single standard resulting in disparate impact was valid because the data demonstrated sufficient job relatedness.
Adverse Treatment (or disparate treatment) is intentional discrimination of people or groups of people in the selection, placement, or promotion process.
It should be pointed out that many agencies attempt to anticipate the impact of standards by evaluating the current performance levels of incumbents against the proposed requirements. In response, administrators will abandon the implementation of the same standards by citing adverse impact. In fact, there is no adverse impact because there are no requirements. Our standing recommendation is to allow one to three years or more for the implementation of standards. That phase-in period allows for programming, evaluation, education, and support of employees to meet the new standards. Only then would there be an adverse impact. The current levels of incumbent fitness suggest a training need, not an adverse impact.
Inconsistent application of policies
Inconsistent application of policies is another predisposing factor to litigation. Preferentially applying provisions of agency requirements are triggers to action under the Americans with Disabilities Act, CRA, and the Age Discrimination in Employment Act. The O'Fallon case is one example, although many exist at several levels.
The Final Report that details the methods and findings of a validation study address these and other concerns. You can find additional information on the legal concerns around standards here. If you have additional questions about FitForce can assist your agency, please contact us.