Jim Higgins - Are You At Risk Of Employment Litigation?

Looking back over the consent decree that was signed between the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) and the Wackenhut Corporation where the defendant was required to provide $290,000 in back pay on behalf of 446 African American applicants, I am reminded of how easy it would have been for Wackenhut to have avoided this situation. They were required to pay these funds and hire 41 of the original applicants because it was determined that their selection process was biased against African Americans and the employer was unable to document the tests validity.

The situation is unfortunate on a number of levels; not the least of which is the fact that Wackenhut, and other federal contractors can greatly minimize their legal exposure, as well as their exposure to the spotlight of public opinion, by doing one thing--validating their selection and promotional systems. This essentially means that they demonstrate that their personnel selection tests are job related and consistent with business necessity (federal Uniform Guidelines on Employee Selection Procedures).

How specifically is this accomplished? The employer should conduct a systematic job analysis that collects quantitative data and allows for the identification of critical job duties as well as those critical knowledge, skills and abilities required to perform those duties. Next, they must demonstrate that each item on their selection test is "linked to" or "measures" one or more critical knowledge, skill or ability. They must conduct a statistical analysis of their test data to identify whether there are statistically significant differences in test performance that is attributable to those worker characteristics that are protected under Title VII of the 1964 Civil Rights Act. Finally, they must document that, should adverse impact exist, there were not equally valid alternative test formats that were feasible for the employer's specific situation.

This may sound complicated. However, it is critical to ensuring that both tests are fair and that employers hire the best employees. Had Wackenhut taken these steps, they would have saved perhaps 90% of what they were forced to pay--not to mention the fact that they are still required to validate their test.

It is critical that federal Contractors not assume their tests are valid. Even if you buy a professionally developed test that has been found valid for other employers, the courts require a local validation study. To learn more about validation and how to protect yourself against employment litigation, visit http://www.affirmativeactionservices.com/.