When Perception Doesn’t Equal Reality: Legal Defensibility and Online Screening

Recently I collaborated with Global Learning Resources on a survey examining best practices for the use of screening in the employee selection process. This research effort provided some important insight into the perceptions of online screening amongst staffing professionals. Of primary interest to me was the fact that, of the 105 firms surveyed, about 70% do not utilize any type of online screening in their hiring process. The fact that many of these respondents indicated that they will at least consider using online screening in the future is certainly encouraging (and fits in well with the trends discussed in my article last month). Despite this, our results indicate the presence of some barriers to the adoption of online screening. Unfortunately, I think that many of these barriers are the result of false perceptions. In my experience, one of the major objections to the adoption of online screening is the perception that it is not a legally defensible way to select employees, or that it is somehow not as legally sound as old-fashioned paper-and-pencil screening. This idea is supported by the fact that almost 100% of our survey respondents indicated that legal defensibility was an area of major concern when considering the adoption of online screening technology. In fact, properly constructed and executed online screening tools are every bit as legally sound as their paper-and-pencil counterparts. What Is Legal Defensibility? Legal issues surrounding the use of screening tools for the purpose of selecting employees are a very complicated subject, the discussion of which can easily go well beyond the scope of this article. In order to keep my discussion simple, I will discuss legal defensibility as the direct result of two things: attitude and understanding. Legal Defensibility Is An Attitude It doesn’t matter what type of screening tool is used or how it is delivered: if the context in which the tool is used does not provide the proper foundation, the legal defensibility of that selection tool will be jeopardized. This means that understanding legal defensibility as an attitude held by an organization is just as important as understanding the nitty-gritty details of the various legal requirements associated with screening. The attitude I’m talking about is a “whole is greater than the sum of its parts” kind of thing. That is, there is no one individual thing that will make your employee selection practices legally sound. Instead, legal defensibility is a product of the mindset that you adopt when developing employee selection processes. This mindset is built on the use of innovation and best practices. Organizations whose selection polices, practices, and procedures are guided by this type of attitude are much more likely to make legally defensible hiring decisions. Below are a few concrete examples of actions that reflect the attitude I’m talking about. Each of these make an important contribution to the creation of a context that will increase the legal defensibility of individual screening tools. In the grand scheme of things, the attitude conveyed by selection systems employing these types of practices is much more important to legal defensibility than the delivery mode of any screening tool used within that system:

  • Recruiting for diversity. It is a simple fact that the more diverse your applicant pool, the more likely you will be to select minority applicants. This means that recruiting efforts should be focused on ensuring that your applicant pool reflects an appropriate level of diversity. Choosing a paper-and-pencil screening measure over an online one will not create diversity out of thin air.
  • Valuing the perspective and perceptions of job seekers. Every time your organization interacts with an applicant, you are sending a message to that person about what your organization values and what kind of people work there. This means that the more things that can be done to make applicants feel they are valued (whether they are selected or not), the stronger your employment brand will look to them. In the context of the present discussion, this means that it doesn’t matter how you deliver a screening tool to an applicant. If your selection measures leaves applicants asking, “Why are they asking me this?” you are creating negative impressions that will sacrifice the legal defensibility of your selection system.
  • Standardizing your selection processes. One of the cornerstones of legal defensibility is minimizing the subjectivity involved in making selection decisions. It doesn’t matter how the screening measures used in your system are delivered: legal defensibility requires that you have a documented process for selecting employees, and that this process ensures all applicants for a given job are evaluated in exactly the same manner. This means that each person responsible for making selection decisions needs to follow the same set of procedures and guidelines and make use of the same tools.

The three things listed above represent just a few examples of the type of attitude I am talking about. The bottom line here is to make sure you don’t lose the forest for the trees. It’s silly to get caught up in worrying about the legal ramifications of the type of screening you are using if the environment you are using it in does not provide the foundation needed to ensure legal compliance. Legal Defensibility Is Also About Understanding At a more micro level, there are several basic conditions that must be satisfied in order for any screening tool to be legally defensible. These conditions do not vary based on the method by which the screening tool is delivered. Instead, they are based on an understanding of a screening tool and the role it plays in the employee selection process. Legal defensibility breaks down to the following types of understanding:

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  • Understanding your hiring needs. This means understanding the reason you are seeking to hire talent (e.g., turnover, growth, a lack of key skills among present incumbents) as well as the specific things that define success for the job in question. This type of understanding is most often accomplished by using a formalized job analysis process in which the requirements needed for job success are verified and documented. This process provides a clear picture of the knowledge, skills, abilities, and experience needed among job applicants. Any selection tool, online or otherwise, that functions in the absence of this type of data will flunk the most basic litmus test for legal defensibility.
  • Understand your hiring process and the screening tools used within this process. Once basic job requirements are identified, it is important to understand the overall process by which applicants are evaluated relative to these requirements. This means clearly understanding both how requirements are measured and verifying that they are being measured accurately. Without understanding these things, confidence in the legal defensibility of your hiring system is impossible. This understanding is gained only through choosing the right screening tools for your situation and examining the technical documentation that accompanies these tools. No matter what the delivery method, only tools that are appropriate for your situation, are developed in accordance with accepted standards, and provide valid measurements of the job requirements in question will be legally defensible.
  • Understand how to translate screening results into hiring decisions. Screening tools do nothing more than provide basic information about the information they are measuring. In the end, human judgment is required to infer meaning from these results so that they can be used to make hiring decisions. The manner in which this critical step is accomplished makes all the difference in the world in terms of legal defensibility. The best screening tool ever made is worthless if the person making hiring decisions does not understand how to use the data it provides to make decisions. Legal defensibility at this step in the hiring process requires a standardized process that minimizes subjectivity. Again it does not matter what type of screening tool is used as a part of this process, as long as those using the information these tools provide understand what they are doing.
  • Understanding the importance of metrics and an ongoing commitment to your screening system. Legal defensibility does not involve simply choosing a screening tool, plugging it into your hiring process, and then walking away. It is important to understand the absolute necessity of using metrics to continually examine the performance of your screening tools. These metrics will provide you with concrete evidence that your screening tools are actually helping you choose the best applicants for the job. This information is a critical part of establishing legal defensibility. It is also critical to understand the importance of treating your screening process as a living system. This means continually collecting data in an effort to better understand your system and refine it in order to increase its efficiency. Again, the type of screening used is irrelevant here. Ongoing data collection and analysis are a must no matter what type of screening is used.

Conclusion The information presented here should help eliminate the perception that online screening is any less legally defensible than other types of screening. All screening is held to the same set of standards and the burden of ensuring that screening tools meet these standards is carried by the user. The good news for online screening is that there are many online screening tools presently on the market that can be used in a manner that meets all of the legal defensibility requirements discussed here. Even better news is that not only do these tools equal traditional screening measures in terms of legal defensibility, but the efficiencies of the Internet allow them to offer significant advantages over traditional measures (see my previous articles for more information about these advantages).

Dr. Charles Handler is a thought leader, analyst, and practitioner in the talent assessment and human capital space. Throughout his career Dr. Handler has specialized in developing effective, legally defensible employee selection systems. 

Since 2001 Dr. Handler has served as the president and founder of Rocket-Hire, a vendor neutral consultancy dedicated to creating and driving innovation in talent assessment.  Dr. Handler has helped companies such as Intuit, Wells Fargo, KPMG, Scotia Bank, Hilton Worldwide, and Humana to design, implement, and measure impactful employee selection processes.

Through his prolific writing for media outlets such as ERE.net, his work as a pre-hire assessment analyst for Bersin by Deloitte, and worldwide public speaking, Dr. Handler is a highly visible futurist and evangelist for the talent assessment space. Throughout his career, Dr. Handler has been on the forefront of innovation in the talent assessment space, applying his sound foundation in psychometrics to helping drive innovation in assessments through the use of gaming, social media, big data, and other advanced technologies.

Dr. Handler holds a M.S. and Ph.D. in Industrial/Organizational Psychology from Louisiana State University.

LinkedIn: https://www.linkedin.com/in/drcharleshandler