Workshop 1 (half day)
Defending Minimum Qualifications for E-Applicants and Beyond
Presenters: David W. Arnold, Wonderlic, Inc.
Lisa W. Borden, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.
James C. Sharf, Employment Risk Advisors, Inc.
Coordinator: Suzanne Tsacoumis, Human Resources Research Organization (HumRRO)
The question of who is a bona fide applicant has been debated by EEO enforcement agency personnel and employers since the
Uniform Guidelines on Employee Selection Procedures were adopted in 1978. For the past decade, increasing reliance on paperless job applications has lead to frequent discussions about who is to be counted as an e-applicant for EEO data collection purposes. In March 2004, the Equal Employment Opportunity Commission and the Department of Labors Office of Federal Contract Compliance programs proposed the adoption of additional questions and answers to clarify and provide a common interpretation of the
Uniform Guidelines on Employee Selection Procedures as they relate to the Internet and related technologies. The intent of the proposed Q&As was to guide employers in their efforts to comply with requirements of Federal law prohibiting employment practices that discriminate on grounds of race, color, religion, sex, and national origin (emphasis added) 29 C.F.R. 1607.1(B). The proposed Q&As blurred the previous distinction between recruitment practices that were not burdened under the
Uniform Guidelines and selection practices that were. The thrust of the proposed Q&As is to clarify that recruiting announcements used to develop their pool of qualified applicants are to be newly subjected to disparate impact analysis and that such analysis can be based on Census or workforce data. As one labor economist opined, The proposed Q&As are my retirement annuity.
If adopted as proposed, recruitment practices including meeting minimum qualifications such as educational diplomas and passing licensing and certification exams will be newly challenged under the
Uniform Guidelines. As a practical matter, I-O psychologists will be burdened with demonstrating that any minimum qualification resulting in adverse impact (i.e., that is not representatively attained by each RSN subgroup in the labor market) is job related for the position in question and consistent with business necessity as defined in the Civil Rights Act of 1991.
This workshop is designed to help participants:
- Analyze the new proposed Q&A on the definition of e-applicants
- Critique the utility and risks associated with using minimum qualifications
- Design legally defensible processes for developing and assessing minimum qualifications
- Use methods for creating and evaluating minimum qualifications that are legally defensible
David W. Arnold is general counsel for Wonderlic, Inc., where he is involved with legal issues concerning privacy, negligent hiring, employment testing, and equal employment matters. He also serves as general counsel for the Association of Test Publishers. In this capacity, Dr. Arnold has testified on many occasions before various legislative committees on issues related to testing. Before joining Wonderlic, Dr. Arnold held positions with civic and academic organizations, in addition to corporate assignments with Supermarkets General Corporation, United Airlines, and Reid London House. He is an active member of the American Bar Associations Section of Labor and Employment Law and SIOP. He has also served as chairperson of the APAs Committee on Legal Issues and currently serves on the State Affairs Committee of SIOP. David has also written over 100 articles regarding testing and employment law/legislation and spoken frequently to various trade groups regarding these topics. He holds a JD from Loyola University Law School and a PhD in industrial psychology from the University of Nebraska.
Lisa W. Borden is a partner in the Birmingham office of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., where her practice primarily involves advising and representing both public and private entities in employment matters, including individual and class action litigation. Ms. Borden has extensive experience in litigation concerning the validity of selection procedures. She has worked with numerous I-O psychologists in a variety of contexts, including the provision of expert opinion and testimony in litigation, consultation prior to and during litigation, and the development and implementation of training programs and selection procedures in compliance with court orders. Baker, Donelson has offices in Alabama, Georgia, Louisiana, Mississippi, Tennessee, and Washington, DC, as well as a representative office in Beijing, China. Lisa received her law degree from the Emory University School of Law in Atlanta, Georgia.
James C. Sharf is president of Sharf & Associates, Employment Risk Advisors. He advises employment attorneys, HR managers, and fellow industrial psychologists on developing, implementing, and defending selection, licensing and certification, and appraisal systems that minimize the risk of employment litigation. Jim brings 3 decades of regulatory experience in dealing with EEO liability involving (a) age, race, and gender discrimination claims; (b) disparate impact claims challenging minimum education and experience requirements; (c) licensing and certification assessments and employment tests; and (d) class certification arguments under both Title VII and the Department of Labors Office of Federal Contract Compliance Programs enforcement of Executive Order 11246. As EEOCs chief psychologist in the mid-1970s, Jim drafted the
Uniform Guidelines on Employee Selection Procedures and later served as special assistant to EEOCs chairman for whom he drafted the race norming prohibition in the Civil Rights Act of 1991. More recently, Jim consulted with industrial psychologists at the new Transportation Security Administration in designing the prerequisite screening criteria and selection tests used to hire over 50,000 airport security screeners nationwide. He has authored more than 50 articles and chapters on fair employment, and he has conducted dozens of EEO seminars and workshops nationwide. His most recent text is a risk-management analysis of contemporary trends in employment class action litigation. Jim is a Fellow of both SIOP and APA. Jim received his PhD in organizational psychology from the University of Tennessee in Knoxville.
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