Statement of Lawrence Ashe1 Ashe, Rafuse & Hill, LLP

Meeting of May 16, 2007 - on Employment Testing and Screening

The Uniform Guidelines on Employee Selection Procedures² define a "selection procedure" as:

Any measure, combination of measures, or procedure used as a basis for any employment decision. Selection procedures include the full range of assessment techniques from traditional paper and pencil tests, performance tests, training programs, or probationary periods and physical, educational, and work experience requirements through informal or casual interviews and unscored application forms.³

Performance appraisals are the most litigated selection procedure or "test" now and for the foreseeable future. They are clearly a "selection procedure" under the Uniform Guidelines.⁴ They are usually the key documents in reductions-in-force ("RIFs") or cases of terminations with adverse impact and often in promotion and compensation analyses, especially class-based.

Under the Age Discrimination in Employment Act⁵ (the "ADEA"), performance appraisals need only be "reasonable" as to the job,⁶ not per se demonstrably job-related under Griggs and the Uniform Guidelines.⁷ By contrast, under Title VII of the Civil Rights Act of 1964⁸ ("Title VII"), performance appraisals must be demonstrably job-related if there is adverse impact against a relevant protected group. Content validity will be relied upon almost always to prove job-relatedness of performance appraisals.

A professional job analysis is the safest course for employers, though some performance measures are so self-evidently job-related as not to require a formal job analysis. Examples of the latter could include factors such as flight simulator results for commercial airline pilots, firearms qualification for some law enforcement personnel, water-related first-aid skills for lifeguards, reliable attendance for some jobs, driving skills tests for commercial drivers, bilingual fluency for translators, and the like.

The EEOC has never issued guidance on "best practices" for either job analyses or performance appraisals. Both would be potentially helpful for employers, human resources professionals and industrial psychologists. Focusing on performance appraisals, I respectfully suggest that best practices can include:

1. Basing them and the rating factors on a thorough knowledge of the job, often obtained through a preceding job analysis;
2. Rating forms which are tailored to the relevant performance factors and appropriately objective where feasible;
3. Clear definitions of and on the performance rating scale;
4. Weighting of rated factors where appropriate;
5. Written justification of high and low ratings;
6. Careful initial training of raters and rating reviewers and approvers, with briefer annual retraining;
7. Monitoring of proposed ratings for adverse impact, as well as inappropriate written justification for ratings;
8. Investigation of any detected anomalies to ensure job-relatedness, accuracy and fairness;
9. At least one level of review and approval of ratings by first-level rater;
10. Provide information to the rated-employee, including:
    1. Review rated performance with rated employee, preferably in person;
    2. Provide copy of rating form to rated employee, requiring their signature on the original to document the review session and receipt of copy of rating, but not agreement with the ratings;
    3. Specified right and avenue of appeal of ratings for perceived inaccuracy and/or unfairness within a stated relatively short time deadline.
    4. Opportunity for ratee to comment on his or her appraisal;
11. Completing them at least annually and on a stated schedule, ensuring that they are done in a timely manner.

Footnotes

1. The assistance of my colleague, Beth Moeller, is gratefully acknowledged.

2. 29 C.F.R. § 1607.1, et seq. (the "Uniform Guidelines").

3. 29 C.F.R. § 1607.16(Q).

4. See id.

5. 29 U.S.C. § 621, et seq.

6. In Smith v. City of Jackson, 544 U.S. 228 (2005), the Supreme Court held that, if an employer is able to articulate a "reasonable factor other than age" upon which the challenged employment decision was based, a plaintiff may prevail on a disparate impact claim under the ADEA only if the plaintiff can show that the employer's articulated non-age based factor was "unreasonable." The Court specifically held that Title VII's "business necessity test," which asks whether there are other ways for the employer to achieve its goals that result in lesser adverse impact on a protected class, is not part of the inquiry under the ADEA. See also Pippin v. Burlington Resources Oil & Gas Co., 440 F.3d 1186 (10th Cir. 2006); Meacham v. Knolls Atomic Power Laboratory, 461 F.3d 134 (2d Cir. 2006); Durante v. Qualcomm, Inc., 2005 WL 1799416 (9th Cir. Aug. 1, 2005); Armstrong v. Blair, 2006 WL 2599770 (W.D. Okla. 2006).

7. Griggs v. Duke Power Co., 401 U.S. 424, 431-2 (1971) (Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity.")

8. 42 U.S.C. § 2000e, et seq.

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