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It has been an interesting week as I have watched issues that I deal with on a daily basis become part of the mainstream news media. For those of you who are unaware, earlier this week the Supreme Court handed down a ruling in a case that deals with discrimination and employment testing. This case is highly relevant to what myself and other I/O psychologists do, and its complexities do not surprise me at all. I cut my teeth as a psychometrician for the City of New Orleans, helping to create and validate police and firefighter testing. I can say with confidence that, when it comes to test development and validation, public service testing carries with it by far the most potential for litigation. There are many reasons for this, all of which seem to hinge on the promotion (or lack thereof) of those in a protected class (e.g., minorities) over those in non-protected classes.

A complete discussion of the intricacies and technicalities of validation, discrimination, adverse impact, and differential prediction is beyond the scope of the words I am writing today. Suffice it to say that this case has placed competing priorities in the use of testing in the spotlight. These competing priorities are using fair testing while striving to eliminate discrimination in hiring. While title VII of the Civil Rights Act of 1964 has attempted to provide some guidance in relation to these competing goals, the Ricci case has laid bare some critical issues that in my opinion certainly call for the government to re-evaluate and modernize the standards it has set.

We are mandated to use valid tests. Valid tests can often lead to minorities being hired at lower rates than those of other races. This is seen as OK as long as the test has been validated, because in theory this means the test is job-related and job-relatedness is the standard by which the legality of testing is determined.

However, what are we to do when sticking to the use of validation — as we have been asked to do — creates a situation that actually inhibits the goal of ensuring diversity and fairness? This has been a thorny issue for those of us in my profession for a long time. There is no magic bullet. The dissenting opinion in this case led by Justice Ginsburg rallies around the idea that the spirit of diversity and fairness should be the highest standard to which we aspire in hiring. It is hard to argue with this point … except for the fact that there are technical issues which can stand in the way of our achievement of this goal.

So, what does all this mean for hiring in the corporate world? I offer my humble answer to this question as follows: keep reading…

The U.S. Supreme Court today gave employers some guidance today on the use of assessment tests, saying the results of these tests can not be ignored simply because they have an adverse impact on a protected group.

Ruling 5-4 in the case of Ricci v. DeStefano, the court’s majority said just because a disproportionate share of whites pass a test does not make the test discriminatory. Writing for the majority, Justice Anthony Kennedy said invalidating test results because of the statistical racial outcome, “… is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.”

Now, before an employer looking at the racial makeup of those who passed and failed a promotional exam and, almost certainly, other types of employment exams, can decide to throw out the results because it fears a discrimination lawsuit, it must have “a strong basis in evidence” to believe the test is discriminatory under Title VII of the Civil Rights Act of 1964 and its amendments.

Employment lawyers reacted with caution, saying the 92-page decision, including a dissent by Justice Ruth Bader Ginsburg, will take time to digest. Their initial impression, however, is that the court appears to have tempered if not invalidated the 80 percent rule of the Equal Employment Opportunity Commission. That rule states that the selection of a group at less than 80 percent of the group with the highest rate will be considered by the EEOC as evidence of discrimination.

keep reading…

When Jack Gross lost his title as claims administration vice president with FBL Financial Group Inc.’s Iowa Farm Bureau division he saw it as a demotion, even though he kept his salary and his responsibilities. Then he started receiving poorer job evaluations. Two years later, Gross was demoted and his job given to a younger woman.

He sued under the Age Discrimination in Employment Act, which,  like Title VII of the Civil Rights Act, prohibits discrimination, but which, unlike Title VII, hasn’t received the same attention from Congress over the years.

Gross won $47,000 from an Iowa jury. The verdict was upheld on appeal. But Thursday, in a historic employment decision, the U.S. Supreme Court overruled the lower courts in Gross v. FBL Financial Services, declaring that it is up to plaintiffs to prove age bias was the reason for an adverse action against them by an employer.

The court’s decision throws out a long-standing rule by which an employee could prevail on an age bias claim if they could prove age was a factor, even if it wasn’t the only one. Once the employee plaintiff established that with evidence, it was up to the employer to show a legitimate reason for taking the action it did.

These so-called “mixed motive” cases reflect such real-world situations as where layoffs fall disproportionally on older workers who tend to have higher pay than younger workers. In that kind of case, replacing older workers with younger ones may be one of multiple reasons considered by the employer. To make a bias case, however, a dismissed worker previously needed only to show that age discrimination was a part of the decision. That shifted the legal burden to the employer who then needed to show that the decision — in this example a layoff — would have been handled the same way regardless of worker age.

The Supreme Court ruling, written by Clarence Thomas and decided on a 5-4 vote, invalidates this two-step process — shifting the burden of proof — and places the entire burden of proof on the employee.

“The burden of persuasion does not shift to the employer even when a plaintiff has produced some evidence that age was one motivating factor in that decision,” Thomas writes in his decision. keep reading…

Sometime this month, perhaps even today, the U.S. Supreme Court will hand down a ruling with potentially far-reaching implications for employers.

So much has been reported and written about the case of Ricci v. DeStafano that it’s almost impossible to have missed the story of how 20 New Haven, Conn. firefighters were denied  promotions although they came out on top in civil service tests for lieutenant and captain. Eighteen of the top scorers were white; two Latino. None were black, although the city is 37 percent black and blacks made up 30 percent of the fire department in 2003, when the test was given.

When the city’s Civil Service Board got the results, it feared certifying the test would expose the city to a Civil Rights lawsuit on the basis that the test had a disparate impact on a protected minority. But not certifying the results meant an almost certain lawsuit from the successful candidates who might claim, as they later did, that they had been discriminated against based on their race. A part of Title VII of the Civil Rights Act of 1964 makes it illegal to “alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin.“

The Morton’s Fork faced by the board was underscored by its 2-2 vote on certification, an outcome that meant the test results were not certified. keep reading…

Are you hiring in the UK? Here’s what you absolutely must know about discrimination law. keep reading…

The first casualty when war comes is truth. - Sen. Hiram Johnson (R., CA), 1918

The looming passage of the Employee Free Choice Act has the business world in a frenzy. The EFCA, if you haven’t been paying attention, would make it easier for unions to organize and reduce employers’ leverage in contract negotiations.

Businesses act like sentries on the parapets of ancient castles, warning of the approach of barbarian hordes. Consultants, trade associations, and labor lawyers presage unions gaining strength and forcing onerous agreements, obliterating productivity and adding costs. All of this comes, of course, at the worst possible time from a business perspective. keep reading…

Here at ERE, we have a profound respect for the truthiness and recruiting insights of Stephen Colbert.

keep reading…

Bush is out the door and Obama is here — but what does this new administration mean for the workplace? There’s the obvious. Many are looking to Obama for his plan to revive the economy, bring us out of the recession, create new jobs, and in effect get us back to recruiting for more requisitions than we know what to do with — the good ‘ol days.

But what else does an Obama administration mean for the workplace and for the recruiting world?

A significant piece of legislation with great potential to impact the American workplace is the Employee Free Choice Act, which amends the National Labor Relations Act. Maybe you don’t recruit for or work in a unionized organization — and as a result, you’re thinking, so what? Should you even care about this? And will it affect you? Yes and yes. If passed, the EFCA would make it easier for your workplace to become organized. And given the legislation has received near-unanimous support from Democrats in the House and Senate both, and full support from President-Elect Obama who pledged to enact it, the EFCA should be on your radar.

keep reading…

How are you doing with those New Year’s resolutions? We mean the work ones, not those “lose-weight-eat-healthy-get-more-exercise” ones.

If “Reevaluate background screening program” isn’t on your list, add it now because you can bet that should the EEOC come calling it will do it for you.

Ever since 2006 when the Equal Employment Opportunity Commission adopted a series of changes that have come to be known as the “Systemic Initiative,” EEOC field offices have been aggressively pursuing cases where one or more forms of discrimination permeate a company’s hiring practices. These can be as overt as the $20 million settlement last month against LA Weight Loss Centers for refusing to hire men. Or they can be as unintentionally discriminatory as refusing to hire anyone with a violent criminal record.

This latter instance was the heart of the leading U.S. case on background screening, El v. SEPTA.

Douglas El was fired as a driver of the mentally and physically disabled when a criminal check turned up a juvenile murder record. His attorneys sued showing that the policy has a disparate impact on Blacks who are more likely to have a record than whites. The Third Circuit Court of Appeals in Philadelphia upheld the employer in the case, but recruiters should take little comfort in that decision.

“The third circuit dropped lots of hints,” says EEOC attorney Carol Miaskoff, that it would have ruled differently, but for a lack of expert witnesses on the part of El’s attorneys. They chose not to counter testimony by noted criminologist Dr. Alfred Blumstein that a person with a criminal record is more likely to recidivate, even if, as in El’s case, the conviction was 40 years old.

So why should this prompt a new year’s review of hiring practices?

keep reading…

Changes to the Americans with Disabilities Act that take effect New Year’s Day will broaden the scope of those covered and expand the very definition of disability. One of the country’s foremost employment and labor law firms says the “ADA Amendments Act will mean a massive change for most of the country’s employers.”

“More workers will be defined as disabled,” says Myra Creighton, partner in the Atlanta office of labor firm Fisher & Phillips. That will almost undoubtedly mean that more workers will be requesting some form of accommodation for their disability.

Where previously a diabetic or someone with ADD whose condition is controlled by medication was probably not disabled under the prevailing court decisions, now the amendments make clear that they probably are. The amendments loosen up the definition of disability and eliminate consideration of the effect of medication, prosthetics, hearing aids, and the like. That means a person is to be considered disabled whether or not any form of treatment or corrective device (with the exception of glasses and contacts) is used to control or ameliorate the condition.

However, for recruiters and hiring managers, the impact is likely to be more subtle.

keep reading…

This week:

• Non-compete clauses
• “Color tests”
• Internal recruiting
• Resume search/software tool
• Working from home
• Job board debate

keep reading…

The hiring practices of one of the most famous entertainment venues in the world have been called discriminatory as the result of a background criminal check that turned up a job candidate’s assault conviction.

A New York City law firm filed a complaint with the Equal Employment Opportunity Commission claiming Madison Square Garden discriminates against African-American job applicants by illegally using criminal history reports in making hiring decisions.

The EEOC complaint alleges that Carlene Clarke, 27, received an employment offer letter from New York’s Madison Square Garden in September 2007 which was rescinded a month later after a background check discovered she had pleaded guilty to misdemeanor assault more than five years earlier.

According to the press release issued by Outten & Golden LLP, which represents Clarke, the rationale for the complaint is that “use of criminal histories in making hiring and other employment decisions has a disparate impact on African-Americans.”

keep reading…

Mickey Silberman, the ubiquitous Jackson Lewis attorney with a gift for gab and an encyclopedic knowledge of the U.S. government’s online recruiting rules, offers employers who must comply with such rules three questions to ask themselves.

By asking themselves these questions, he says, you can reduce the number of people considered “applicants.” This can help employers better comply with the rules. (If you can show that you hired 20 women out of 25 applicants, that’s generally better than saying you hired 20 women out of 25,000 applicants.)

Anyhow, the three questions:

keep reading…

The U.S. EEOC will be “looking very, very closely at disparate impact issues,” the agency’s chair Naomi Earp said a few minutes ago here at the big ILG conference in Anaheim.

President Bush appointed Earp, a single mother of a teenage son, to her current term in 2005.

She says the “agency has no illusion” that it can tackle all of its huge workload. Instead, it hopes to bring about workplace change through disparate impact cases. Expect the EEOC to focus specifically on technology and tests used by employers in the hiring process.

Also, Earp:

–Says that people with some Asian and African accents are sometimes “viewed as put-offs.” People dwell on the fact that they’re Japanese-Americans or another nationality and ignore the content of their words.

–Says Hispanics see this as “our time” and expect to be taken very seriously.

–Gets a kick out of a new Bloomberg flex-scheduling policy that coincides with a lawsuit against the company.

–Lashed out at those who believe “corporations are inherently evil.”

–Says, not-so-jokingly, of the EEOC: “The one thing we do really well is prosecute employers.”

• Zacky has settled with the OFCCP. Because of hiring practices the Labor Department believes disproportionately rejected female applicants for some jobs, the company will pay about $347 to women turned down for jobs; hire some who weren’t hired; and monitor its hiring process to make sure it’s not discriminatory.

• A new report on healthcare and manufacturing in Ohio finds that, regarding healthcare, “In a worrisome trend, some of the healthcare occupations that experienced the strongest growth also had declining real median wages. These jobs tended to be healthcare support positions that required little or no classroom training. This trend was exemplified by the home health occupation, which grew by 56 percent in just three years by adding 17,100 jobs. The real median wage in this occupation fell by 5.6 percent.” And regarding manufacturing, “Guidance counselors do not understand the opportunities available for manufacturing careers or choose to direct students to other fields.”

• One group says it has “something exciting” to announce, which it says will be the “next best thing in Web 2.0 recruiting.” Meanwhile, InovaHire says its “design and functionality will be Web 3.0.” What’s on the Inova site isn’t much now, but we’ll keep in touch with the company and fill you in.

• CareerBuilder has launched a new job board, for retail.
  

• Speaking of CareerBuilder, which recently launched a new iPhone app … Nate Swanson, who analyzes HR/recruiting-related stocks for ThinkPanmure, says the recruiting/HR field will move quickly into mobile-device adoption. He writes: “With early movers such as salesforce.com, Oracle, and CareerBuilder already live with mobile applications on the App Store, we believe that it is only a matter of time before the human capital management space begins to push into the mobile frontier … we actually project an inflection point in growth 12-18 months from now as HCM applications converge with social networking and Web 2.0 technologies … We believe that the iPhone is pushing these boundaries fast, really fast, and other mobile device manufacturers are now scrambling to catchup.”

• A lousy candidate experience? According to Dubai-based Hiring Solutions, its client Alshaya, also in Dubai, is one exception. Hiring Solutions says in an email: “Every job seeker at Alshaya will henceforth receive SMS updates on their job application, regardless of which part of the world they live in. The SMS will inform candidates whether they are short-listed or called for an interview and ask them to check their email for complete details. This spares jobseekers the agony of second-guessing their application status and helps Alshaya to reduce its average time-to-hire.”

Each week, ERE discussion group members share ideas, voice concerns, and work together on similar recruiting challenges. After a year or so of feeling a little reluctant to participate, I recently started to post comments and messages in some of these groups. I think part of what made me hesitant to contribute was the fact that there is so much information. It was hard to spend the time picking out the most relevant discussions. I thought I would make it a little easier by giving everyone a weekly update — a summary of the top seven most interesting discussions of the previous week.

keep reading…

There is a major shortage of talent. Critically needed foreign workers cannot make their way here because temporary work visas are snapped up on the first day they become available. If you were thinking this is about high-tech workers, you would be wrong. This is about fashion models.

What few people know (and maybe even fewer care to) is that currently a fashion model coming to America has to compete for the same H1-B visas that every immigrant software engineer and developer does. This is a crisis. Summer is upon us and what are the editors of swimsuit editions supposed to do when visas run out on the first day they are available — take pictures in France and Photoshop in a background from California? Fast action is needed. Disaster looms. The fantasy lives of millions of teenage boys and voyeurs are in jeopardy.

Enter Anthony Weiner. The congressman from New York is riding (or taking the subway) to the rescue. Representative Weiner has sponsored a bill in Congress that would create a separate category of visas for fashion models, the P-4. If passed, the beauties would not be competing with the geeks and we can all breathe a collective sigh of relief. Weiner for President.

Jokes apart, the Weiner bill — HR 4080, does highlight a fundamental problem with U.S. immigration policy. With regards to talent we have no policy. What we do have are immigration laws dating to the 1940s that have been sporadically modified without much of a plan or any broader understanding of the strategic implications. That made little difference in the past with the U.S. being the best and, to some extent the only, destination for skilled talent.

While the U.S. is still a very attractive place, alternatives are emerging. I wrote about this in a recent article on increasing competition for talent from the European Union and other countries. The Blue Card program created by the EU is explicitly targeted at skilled workers, unlike the Green Card, which is predominantly a vehicle for reuniting families. Our immigration policy does little to attract high-caliber talent in fields like technology and sciences and does not differentiate much between categories of talent. There are no strategic underpinnings to support employers in the war for talent.

Take the H-1B program as an example.

keep reading…

Some news from various sources on employment eligibility, background checks, screening, and more:

New I-9 Form Released…

U.S. Citizen and Immigration Services just released its new version of the I-9 employment verification form, so make sure to update your records. (You can download it here; note that the new expiration date in the right-hand corner reflects 6/30/09.) You can move to an e-file for these forms, and perhaps you should: employeescreenIQ says its data shows that more than 85% of paper I-9 forms are filled out incorrectly. And electronically verifying this step is certainly a “greener” thing to do, and companies like Verified Person, Inc. agree. Its CEO, Jim Davis, says his Verified Person I-9 solution “affirms Verified Person’s belief in promoting an HR process that benefits the environment.”

From Resume Fluffing to Conviction Bluffing…

The folks at employeescreenIQ also say one of the hottest background-screening trends centers around the importance of thorough background checks in a shrinking job market. In fact, considering the state of the economy, “the job market is destined to become even more competitive, which in turn could lead some individuals to stretch the truth in order to secure employment,” according to the company’s new list of 10 background screening trends. Also, employeescreenIQ says conviction rates among job applicants are on the rise, and points to a 56% discrepancy rate between what is reported on a resume and what is found when conducting employment and education verifications.

keep reading…

–In Illinois, a home healthcare company settles a case regarding an employee allegedly not hired for being black.

–Meanwhile, Disney is sued for allegedly not hiring someone who didn’t have the “Disney look.”

–Who says the newspaper is dead? Well, I do, often. But Brian Hauswirth of the Missouri Department of Corrections tells me the paper’s the main reason why his career fair just surpassed all expectations. “When we ask people, ‘where did you hear about the career fair?’ the no. 1 reason is the newspaper,” he says. About 165 people attended the fair, he says, and about 103 applied for Corrections Officer 1 positions at a new prison. They still need to pass background checks, but Hauswirth says the results are “very promising.” Those with military experience make up about a quarter of corrections officers.

–Cellular South has completed a redesign of its careers site. It’s no EY site, but the company does use video to try to get applicants who fit its culture: fast-paced, challenging, competitive. It had Bernard Hodes (profile; site) help out (after realizing that consumer marketing and employment branding are cousins, not siblings, so Cell South can’t just use its in-house marketing folks), but still uses Sonic (profile; site) to track applicants.

Barb Miller, VP of human resources for the 1,000-employee company, one of the largest privately held wireless companies in the U.S., says the employees you see on the site are indeed employees, not actors, though Hodes and Miller’s team did discuss the idea of using actors (some Cellular South employees underperformed on camera, resulting in an SVP filling in at the end). Cellular South will measure results of the site through the “capture rate” (who leaves the site?); quality of hire (performance reviews, retention); traffic; and productivity (how many customers they can get with a certain number of employees). I asked Miller about the company’s snooze-inducing job descriptions. “You hit on something good,” she says. “That will be the next phase of what we do.”

We may be in the midst of a recession with increasing unemployment and fewer jobs, but that’s not likely to have much long-term effect on shortages of talent.

We’ve all read about the aging of the population and other demographic factors. The likely effect of these on availability of talent has been extensively written about. But the problems are likely to be worse than we realize because of three factors: liberalization of immigration policies in other countries; more restrictive immigration policies in the U.S.; and supply of talent.

keep reading…