Guidelines, Principles, Standards, and the Courts: Why Can't They All Just Get Along?

Abstract

McDaniel, Kepes, and Banks (2011) summarize the last 3 decades of research literature on the science and practice of personnel selection and identify some inconsistencies between contemporary perspectives and the requirements of the Uniform Guidelines on Employee Selection Procedures (Equal Opportunity Employment Commission,

Encouraging Debate on the Uniform Guidelines and the Disparate Impact Theory of Discrimination

“…There are two themes in the commentaries concerning adverse impact. One relates to the measurement of adverse impact (e.g., Barrett et al, 2011; Jacobs et al, 2011; Mead & Morris, 2011) and the other, perhaps more importantly, concerns the disparate impact theory of discrimination as a more central problem for personnel selection than the Uniform Guidelines (e.g., Barrett et al, 2011; Dunleavy, Aamodt, Morgan, Gutman, & Cohen, 2011; Jacobs et al, 2011; Sharf, 2011). Each theme will be addressed in turn.…”

“…What would then? This question brings us to the second theme regarding adverse impact in the commentaries: the disparate impact theory of discrimination as the central problem rather than the Uniform Guidelines per se (e.g., Barrett et al, 2011; Dunleavy et al, 2011; Sharf, 2011).…”

“…Commentaries argued for a change of the overly simplistic definition of adverse impact (Jacobs et al, 2011) or its elimination from laws and regulations through legislative or court action (Barrett et al, 2011; Dunleavy et al, 2011; Sharf, 2011). As noted by Dunleavy et al (2011), such a court action would essentially acknowledge that Griggs v. Duke Power (1971) and Albemarle v. Moody (1975) were misguided case law.…”

“…Commentaries argued for a change of the overly simplistic definition of adverse impact (Jacobs et al, 2011) or its elimination from laws and regulations through legislative or court action (Barrett et al, 2011; Dunleavy et al, 2011; Sharf, 2011). As noted by Dunleavy et al (2011), such a court action would essentially acknowledge that Griggs v. Duke Power (1971) and Albemarle v. Moody (1975) were misguided case law. Although one may wish for such a ruling by the Supreme Court (Sharf, 2011), Barrett et al (2011) cited a recent unanimous Supreme Court decision ( Lewis v. City of Chicago , 2010) that reaffirmed disparate impact as a viable legal theory of discrimination.…”

“…The legislative and case law equating adverse impact with discrimination is the main issue that is detrimental to personnel selection. Commentaries noted that revising the Uniform Guidelines is a major effort (Dunleavy et al, 2011; Jacobs et al, 2011; Outtz, 2011; Tonowski, 2011) and could make a bad situation worse (Barrett et al, 2011). Related to the topic of revision are assertions that the Uniform Guidelines are not a scientific document and were never really meant to be a scientific document (Outtz, 2011; Sackett, 2011; Sharf, 2011).…”