Supreme Court clarifies ADEA burden shifting

On June 19th the U.S. Supreme Court made several employment-related decisions. Of most interest for us is their decision in Meacham v. Knolls.

The case involved workers over 40 who were suing over their layoffs. They claimed they lost their jobs due to age discrimination, claiming a violation of the Age Discrimination in Employment Act (ADEA). Although they claimed both disparate treatment and disparate impact, the important issue here is the latter--employment decisions that may not intentionally discriminate but have that effect.

How the court ruled is closely tied to its 2005 decision in Smith v. City of Jackson, in which they held that adverse impact cases could be brought under the ADEA, but employers could prevail if they could show (per the language of the ADEA) that the employment decision was based on a "reasonable factor other than age" (RFOA).

So what was the decision? The court made it clear that the employer in these cases bears both the burden of production and the burden of persuasion that the employment decisions were based on a RFOA. This is similar to other adverse impact discrimination cases, such as those brought under Title VII, where an employer must show their practice was "job related and consistent with business necessity."

So what does this mean? It doesn't mean a new requirement. It reinforces that all employment decisions--hiring, firing, and everything in between--should be based on logical, non-discriminatory reasons. The fact that the employer may face a slightly easier hurdle in ADEA disparate impact cases compared to, say, race or gender cases, is practically insignificant.

Important note: the plaintiffs in this case provided expert testimony that employee scores on "flexibility" and "criticality" had both the most manager discretion and were tied the strongest to outcomes. Words like these are often invoked in age discrimination cases (a jury can easily see how these types of words might be proxy for "young"), and employers are wise to strongly consider in hiring and firing situations whether the rating factors are tied to benchmarks and can be shown to be important for success on the job.

Scare applicants into applying

What if instead of convincing applicants to apply based on your brand, your benefits, etc., you scared them? That appears to be the strategy of North Carolina's Office of State Personnel.

Their latest recruiting video is called "We are here"--and no, it's not a documentary of aliens trapped on earth, although I'll forgive you for mistaking it for one.

It is, bar none, the strangest professionally made recruiting video I've ever seen. I really don't know how to describe it, so do this--go check it out and let me know what you think. It's one of those things you'll want to show your co-workers.

(by the way, I do have to give OSP kudos for their other profiled video, which describes the development of a SAS-based knowledge management system called NC WORKS).

Staffing.org's 2008 benchmark report

Staffing.org just released its 2008 Recruiting Metrics and Performance Benchmark Report. From all accounts it's a good source of data, gathered from over 1,000 organizations. It's also $400.

Fortunately, they're releasing details in dribbles through their newsletter. For example:

- Employee referrals are still the most popular recruiting source, followed closely by large job boards. Some of the less used sources include mass media and the military.

- Organizations are increasingly using combination structures--in other words, part of their staffing function is centralized, part is decentralized. The numbers vary greatly depending on industry, with transportation being much more centralized while education is much less so.

- Cost-per-hire varied wildly, from $2,000 (retailing, hospitality) to $16,000 (pharma biotech).

- Same goes with time-to-start, with retailing at 4 weeks and government at 12 weeks, with an average around 7-8 weeks.

- 11% of employers report poor performance among new hires; 20% report superior performance.

- Competition for talent and candidate quality were the two most important issues reported.

- More than 80% of respondents have adopted an ATS but few have a "talent management suite."

You can sign up for their newsletter here. It's one of the shorter, more digestible ones.

2008 IPMAAC Conference: Presentations

With memories of last week's IPMAAC conference fresh in my head (and what a great conference it was!), I thought I would mention that presentation slides have already started to appear at the website.

Here's a sample of what's already up:

Police recruiting and retention: "It's Showtime"

Implementing an assessment program for executive candidates

And that's just the tip of the iceberg. Expect many more to pop up in the next few weeks.

Interested in becoming a member? Go here.

Unproctored internet testing: Safe for some tests?

One of the biggest trends in personnel assessment is the movement toward on-line testing. Many organizations are experimenting with so called unproctored Internet testing (UIT), where candidates are allowed to take the exams whenever, and wherever, they want.

Benefits? Extremely convenient for the candidate. Less administrative resources needed by the employer.

Costs? Bye-bye exam security, hello cheating opportunities. Not only is your test out for everyone to see, but you have no real way of knowing (sans biometric verification) who is taking the test.

Some organizations have decided the benefits outweigh the risks, and a new study in the June 2008 issue of the International Journal of Selection and Assessment may provide support for their position.

In it, the authors looked at over 800 applicants from nine European countries that took a test of perceptual speed in an unproctored setting, then followed this up with a proctored parallel version. Results? Not only was there no evidence of cheating, they found the opposite effect--people did better in the proctored setting.

Now before everyone throws out their proctored exams, note that this is a type of test that might be hard to cheat on--at least in one way. Because this is a perceptual speed test, there are no "right" answers that can be looked up. It also required very quick responses. So the only way to cheat would be to have someone take the test for you. Implication: it may make more sense to use certain UITs than others.

This topic is a source of much debate in the assessment community, and there is by no means consensus on the right way to go. But studies like this help!

Take a deep breath, because there's a lot more in this issue:

- The preliminary employment interview as a predictor of assessment center outcomes (fascinating look at how the AC may only make sense for mid-range interview scorers)

- A comparison of the common-item and random-groups equating designs using empirical data (for you IRT fans out there)

- The influence of external recruitment practices on job search practices across domestic labor markets: A comparison of the United States and China

- Beneath the surface: Uncovering the relationship between extraversion and organizational citizenship behavior through a facet approach (a more nuanced look at the relationship shows extraversion can predict OCBs)

- Comparing personality test formats and warnings: Effects on criterion-related validity and test-taker reactions (another good one...personality test added predictive validity beyond ability test but no validity difference between forced-choice and Likert scales, nor between warning and no-warning conditions; forced-choice and warnings may produce negative candidate reactions)

- Applicant selection expectations: Validating a multidimensional measure in the military (describes development of a new measure of applicant perception of the selection process)

- Selecting for creativity and innovation: The relationship between the innovation potential indicator and the team selection inventory

EEOC informal discussion letters

If you're an HR professional in the U.S., chances are you've been to the EEOC's webpage many times. You may even subscribe to their feed. But do you know about their informal discussion letters?

These memos are written by EEOC legal staff, and while they are not "official opinions" of the Commission, they offer insight into several important issues. Consider some of the recent letter titles:

- Background checks of peace officers and the ADA (certain documents may be evaluated post-offer)

- Title VII and ADEA: Job Advertisements (you can "encourage" certain groups to apply, but "seeking" them is probably not a good idea; "journeyman" probably okay)

- ADA: Disability-Related Inquiries; Hiring (screening people out based on medical information must be shown to be job-related and consistent with business necessity)

- Title VII: Use of Conviction Records in Hiring (person convicted for auto-stripping could probably be rightfully denied a tow truck license or job)

- Americans with Disabilities Act: Periodic Testing (questionable whether periodic medical exams of all city bus drivers would be legal)

GINA signed into law...did anybody notice?

It's not often that we have a new federal statute dealing with employment discrimination. So I was a little surprised that the recent passage and signing into law (on May 21) of the Genetic Information Nondiscrimination Act (GINA) hasn't gotten more press.

Perhaps it's because employers don't see it as a big issue--at least not yet. This is one of the few instances of the law being proactive. Many employers may not see how this relates to them, but consider the details:

- The law prohibits employers (generally as defined under the CRA of 1964) from failing to hire, or terminating, someone because of genetic information. This is what most people think of, and the language is similar to other statutes that prohibit discrimination (e.g., it also includes compensation discrimination).

- The law also prohibits employers from considering genetic test information from family members of the applicant/employee.

- It does NOT prohibit practices that result in an adverse impact based on genetic information. The law does, however, specify that this will be reviewed 6 years from when the law goes into effect, which is November 21, 2009.

- Finally, it prohibits discrimination based on "the manifestation of a disease or disorder in family members of such individual." This may be the least known aspect of the law, similar to the ADA provision that prohibits employers from considering a record or perception of a disability.

Remedies in most situations track those under Title VII, and enforcement of the law will be overseen by the EEOC.

For one of the better summaries, check this out.

Taking a look at VisualCV

Last week I spoke with a rep over at VisualCV. She had been nice enough to put together an employer site for me, so we chatted about the site's capabilities as well as some other details about the company.

What is VisualCV? As you would suspect from the name, the site offers job seekers the ability to create a visually appealing version of their resume/CV.

Here's an example of what a job seeker's VisualCV might look like. As you'll see, users have the option to add pictures, videos, and files, and I can tell you from playing on the employer side of things, it's a simple point-and-click affair.

The website has been open since February and according to the rep already has around 10,000 resumes and profiles of about 350 employers. The fact that the service is free (for now) should help raise those numbers.

In terms of search capability, right now you can only search for people by name. So this would be handy if you already knew someone had a VisualCV, but not much help if you're trying to generate names. The plan is to expand search capability in the coming months.

In terms of contacting individuals, there is no charge for doing so (a big difference from other databases like LinkedIn) unless you were doing something like an e-mail blast.

All in all, definitely worth checking out. And if you'd like to read more, I'm certainly not the first to post about 'em. For more information, check out Joel's and Amybeth's posts.