8— Legal Restrictions on Assessments

Dennis Parker

Introduction

The School-to-Work Opportunities Act (20 U.S.C.A. §6101 et seq. West Supp, 1995), creates a framework for cooperation among federal, state, and local governments and agencies, educational institutions, students, labor unions, employers, and other organizations committed to economic and community development in order to raise educational standards. The act is broad in scope and is designed to provide meaningful benefits to all parties involved.

At one level, the impetus for congressional action was the growing fear that the United States was falling further behind in the global marketplace at least in part because of a failure to properly educate its students: congressional findings included in the act stress the need for the development of a "comprehensive and coherent system" of education that would enable the nation to meet the challenge of increasing global competition and technological advances that seem to increase exponentially.1

At a less global level, state and local governments, educational and civic organizations, employers, and labor organizations would benefit by receiving the advantages of better-trained and more productive workers (20 U.S.C.A., §6102 (3), (5)).2 The primary beneficiaries under the act, of course, are students who

1  

The congressional findings noted, with some concern, that 3,400,000 individuals in the United States have entered the work force who have not completed high school, are not enrolled in school, and are particularly unprepared to meet the specialized technical demands of the work force of the twenty-first century (20 U.S.C.A. §6101 (1)-(9)).

2  

Moreover, the act would provide seed funding for underwriting the initial costs of planning School-to-Work Opportunities systems to be maintained with other federal, state, and local resources (20 U.S.C.A. §6102 (4)).



The National Academies | 500 Fifth St. N.W. | Washington, D.C. 20001
Copyright © National Academy of Sciences. All rights reserved.
Terms of Use and Privacy Statement



Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
Intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text on the opening pages of each chapter. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

Do not use for reproduction, copying, pasting, or reading; exclusively for search engines.

OCR for page 200
--> 8— Legal Restrictions on Assessments Dennis Parker Introduction The School-to-Work Opportunities Act (20 U.S.C.A. §6101 et seq. West Supp, 1995), creates a framework for cooperation among federal, state, and local governments and agencies, educational institutions, students, labor unions, employers, and other organizations committed to economic and community development in order to raise educational standards. The act is broad in scope and is designed to provide meaningful benefits to all parties involved. At one level, the impetus for congressional action was the growing fear that the United States was falling further behind in the global marketplace at least in part because of a failure to properly educate its students: congressional findings included in the act stress the need for the development of a "comprehensive and coherent system" of education that would enable the nation to meet the challenge of increasing global competition and technological advances that seem to increase exponentially.1 At a less global level, state and local governments, educational and civic organizations, employers, and labor organizations would benefit by receiving the advantages of better-trained and more productive workers (20 U.S.C.A., §6102 (3), (5)).2 The primary beneficiaries under the act, of course, are students who 1   The congressional findings noted, with some concern, that 3,400,000 individuals in the United States have entered the work force who have not completed high school, are not enrolled in school, and are particularly unprepared to meet the specialized technical demands of the work force of the twenty-first century (20 U.S.C.A. §6101 (1)-(9)). 2   Moreover, the act would provide seed funding for underwriting the initial costs of planning School-to-Work Opportunities systems to be maintained with other federal, state, and local resources (20 U.S.C.A. §6102 (4)).

OCR for page 200
--> would be offered the opportunity ''to participate in a performance-based education and training program that will … (i) enable [them] to earn portable credentials; (ii) prepare [them] for first jobs in high-skill, high-wage careers; and (iii) increase their opportunities for further education, including education in a 4-year college or university" (20 U.S.C.A. §6102 (1)). The act's intended consequences for the future of American students go beyond preparing them for entry-level positions or facilitating postsecondary education. Congress clearly intended long-term results to facilitate opportunity for students throughout their working lives: The purposes of this Chapter are to facilitate the creation of a universal, high quality school-to-work transition system that enables youths in the United States to identify and navigate paths to productive and progressively more rewarding roles in the workplace. … (20 U.S.C.A. §6102 (2)) For purposes of this paper, the most significant aspect of the breadth of the act's scope is that it envisions having an impact on students who have thus far not been reached by existing job training or education reform legislation; it would do this by providing the means for including in its proposed vision people who had historically been excluded from educational and economic opportunities. This would be done by reaching out to school dropouts and low-achieving and disabled youths (those who have traditionally been prime candidates for dropping out). The act also seeks to include those whose lack of access to equal employment opportunity is due to discrimination in employment: "The purposes of this chapter are … to increase opportunities for minorities, women, and individuals with disabilities, by enabling individuals to prepare for careers that are not traditional for their race, gender, or disability (20 U.S.C.A. §6102 (13)). Given the broad scope of the act's goals and its mandate to those seeking to participate in the program it establishes, the success of the act will be judged in large part by the degree to which the work force of the twenty-first century more closely resembles the nation's population. Because the focus of the act is on changing the content of American education and facilitating the transition from schoolyard to workplace, assessment of student performance will assume even greater importance. Although academic success has always had an impact on later opportunities in life, the greater link between schools and the working world that the act seeks to accomplish raises the stakes for all involved. Given the potential impact of programs spawned by the act, it is particularly important that very careful consideration be given to the way that programs are implemented. Implicit in the discussion of raised educational standards and increased employment opportunities are questions about the methods by which students will be evaluated and the effects that this evaluation process will have on determining which students receive the opportunities envisioned in the act. Also implicit is the issue of who will be responsible for shaping the curriculum that students receive. The legislation is significant in that it redefines to some extent the role of schools and the educational structure that supports them in determining what it

OCR for page 200
--> means to be educated. Whereas before the act, to use a commercial analogy that may be particularly appropriate under the circumstances, if it were asked who the primary "customer" for educational services is, the most common answer would undoubtedly have been "students." This is not to say that there was no concern for the ability of graduates to find meaningful employment. An unemployable graduate would certainly not be a satisfied customer. But the primary focus was the development of a well-rounded individual prepared for all aspects of life.3 The act, in essence, broadens the concept of "customer." By involving business more directly at the front end, the act essentially acknowledges that it, too, is a "customer" with an interest in the "product" of a graduate who is adequately prepared to meet the employment needs of businesses. This paper will not address questions of the appropriateness of business involvement in the setting of educational agendas. However, it is important to recognize that one of the challenges presented by implementation of the School-to-Work Opportunities Act will arise from the fact that there is not a complete congruence of interests among all members of the educational partnership that the act creates. The potential difference in interests, particularly between businesses and schools, will require extreme vigilance in order to assure that the program is implemented in an equitable manner. For the most part, the primary burden of this vigilance will and must fall on the schools, in large part because providing a comprehensive education is their ultimate responsibility but also because the schools would presumably not be driven by profit to the same degree as businesses. Although educational institutions and schools may have somewhat different interests, both must consider the equity concerns raised by programs in which they are joint partners. It is essential that each partner recognize that each component part of a new program has a potential impact on the question of equal opportunity. This paper will focus on those components that relate to the question of assessment and credentialing. 3   For example, in Rose v. Council for Better Education, Inc. (790 S.W. 2d 186, 212 (Ky. 1989)), the Supreme Court defined guidelines for determining if the state had fulfilled its constitutional obligation to provide an adequate education, stating that an educated child must possess "at least the seven following capabilities: (i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable students to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient level of academic or vocational skills to enable public schools to compete favorably with their counterparts in surrounding states, in academics or in the job market." Although the first and last capabilities include concerns about job readiness, the list of criteria is far more comprehensive.

OCR for page 200
--> The chief way in which equal opportunity may be involved in assessment questions deals with the question of access, whether it be to a program in a school or to employment related to a plan created under the act. Potential employee partners under the act as well as the educational institutions involved must be aware of the potential that tests or other selection criteria for student participants may be used in a way that frustrates the goals of the act to increase participation in the work force. This is particularly true when heavy reliance is placed on tests. In an effort to assist those contemplating programs pursuant to the School-to-Work Opportunities Act, this paper outlines some of the relevant law, particularly as it relates to assessment, with an eye toward assisting partners with the development of testing and selection criteria that broaden both the base of knowledge and the experience of students while increasing the pool of students able to participate fully in the American work force in the upcoming century. Legal Limitations Of Selection Criteria The act makes clear that it does nothing to blunt the full force or effect of any law that provides protection against any kind of discrimination: Nothing in this chapter shall be construed to modify or affect any Federal or State law prohibiting discrimination on the basis of race, religion, color, ethnicity, national origin, gender, age, or disability, or to modify or affect any right to enforcement of this chapter that may exist under other Federal laws, except as expressly provided by this chapter. The range of federal laws alone that may limit the uses of tests or other selection criteria is large; these laws frequently overlap in coverage and include prohibitions against discrimination based on race, sex, national origin, and religion (42 U.S.C.A. §2000e et seq. (Title VII)) in employment; on the basis of disability (Americans with Disabilities Act) or age (Age Discrimination in Employment Act) in employment; because of race in the entering into or continuing of contracts (42 U.S.C.A. §1981); because of race, color, or national origin in federally assisted programs (U.S.C.A. §2000d et seq. (Title VI))4; or on the basis of sex in federally funded education programs.5 In addition, most states and/or localities have separate statutes or regulations that provide similar or more extensive coverage than their federal counterparts. A number of examples can be imagined that would trigger review under one or more of the statutes described above. For example, if employee partners placed onerous conditions on student participation 4   Title VI provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 5   20 U.S.C. §1681 et seq. states that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity [receiving] Federal financial assistance except …" (the statute then lists exemptions not applicable to this discussion).

OCR for page 200
--> in training programs that had the effect of unnecessarily limiting access to a protected class, that employer might be liable for violations of various laws. Similarly, schools that made class assignments or set course prerequisites in a manner that had a disparate impact on a protected class might also run afoul of the law. To understand the limitations imposed on testing and other selection criteria, it is important to understand the ways in which these statutes operate. All of them prohibit intentional discrimination against the classes of people they are designed to protect. Presumably, it is unnecessary to point out to prospective employers that, under the School-to-Work Opportunities Act, that any test or selection criterion that explicitly discriminates on any of the bases listed above can only lead to trouble. Problems are more likely to arise because of the fact that many of the statutes listed above can be invoked under an "effects" or "impact" theory of discrimination, for example, Titles VI, VII, and IX, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. Under this theory, it is the consequence of an employment criterion used or decision made, rather than the employer's motive, that is significant. Indeed, the employer's bona fides are irrelevant in the analysis of a case under an impact standard. To help the reader understand how specific tests or selection criteria might cause problems for employers under the application of an impact6 standard, some discussion of how a case is brought and won under such a theory is useful.7 Proving A Disparate Impact Case From the first recognition in 1971 that Title VII violations could be alleged in cases not involving discriminatory intent8 until the passage of the Civil Rights 6   In Griggs v. Duke Power (401 U.S. 424,432 (1971)), the seminal case articulating the impact standard in Title VII litigation, the Supreme Court made clear that an employer is not insulated from a lawsuit by virtue of its good intentions: "Good intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability." 7   The following discussion is directed primarily toward employer partners because of the nature of their involvement in the creation of programs. They presumably will have the primary responsibility for defining what they consider to be adequate training and moreover will be instrumental in devising and implementing assessment criteria for purposes of later employment. Title VII is therefore the focus of the discussion here because it deals specifically with employment. At the same time, although the exact contours of Title VI impact analysis have not yet been firmly established, Title VII can be looked at to suggest how courts might approach cases involving differential impacts under Title VI. Certainly, any school that incorporates into its educational program any criterion with a discriminatory impact proposed by a business partner would potentially violate Title VI (see discussion below). 8   See Griggs v. Duke Power Company (401 U.S. 424 (1971)), prohibiting employment practices "that are fair in form, but discriminatory in operation."

OCR for page 200
--> Act of 1991, a series of court cases defined the legal requirements of bringing an action under an impact theory. Following a series of Supreme Court decisions in 1989 that cast some doubt on the continuing vitality of much of the earlier case law regarding discriminatory impact cases, Wards Cove Packing Company v. Atonio (490 U.S. 642 (1989)) and Watson v. Fort Worth Bank and Trust (487 U.S. 977 (1988)), Congress revisited the issue of the scope of Title VII. Although Congress intended for the Civil Rights Act of 1991 to clarify and correct the effect of some later Supreme Court decisions, the language of the legislation raised additional questions about statutory construction and must therefore await further judicial or legislative clarification. For present purposes, though, the manner in which a Title VII impact case can be proven is sufficiently clear. Proving a case is divided into three stages. A plaintiff wishing to bring a case under the impact standard of Title VII must pass the initial hurdle of making a prima facie case or presenting sufficient factual evidence to create a presumption that the law has been violated. This is done by showing that the employer against whom the charge has been made "uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex or national origin" (42 U.S.C.A. §2000e-2(k)(1)(A)(i)). In practice, this means showing "that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants" (Albemarle Paper Company v. Moody, 422 U.S. 405, 425 (1975)).9 Following this demonstration by the plaintiff, the defendant employer has the opportunity, and obligation, to respond. As a preliminary matter, if the employer can show that the challenged practice did not cause the disparity or that no disparity exists, the inquiry ends (42 U.S.C.A. §2000e-2(k)(1)(B)(ii)). Even if the challenged practice is the cause of a real disparity, though, the employer has not necessarily lost the case. In that instance the employer may then introduce evidence that the challenged practice is "job related for the position in question and consistent with business necessity" (42 U.S.C.A. §2000e-2(k)(1)(A)(i)). Predictably, the precise meanings of "job related" and "business necessity" are unclear, particularly because of the tortured legislative history of the Civil Rights Act of 1991, during which Congress changed the language of the 9   Not withstanding the apparent clarity of the Supreme Court's pronouncement about making a prima facie case, courts in individual cases have grappled with the application of the standard to particular fact situations in an attempt to interpret the meaning of such terms as "significantly different," "racial pattern," and "pool of applicants." An exegesis of these cases is beyond the scope of this paper; however, in his excellent treatise on employment discrimination, Lex K. Larson (1996) suggests the following guideline for determining if a prima facie case has been adequately presented: ''For present purposes, it is sufficient to say that the plaintiff will have succeeded in presenting a strong prima facie case under the disparate impact theory if he or she can convince the fact-finder that: (1) The statistics accurately reflect the actual pool of applicants; (2) The statistics demonstrate that the defendant's selection device results in a work force that has a minority group representation drastically different from that of the applicant pool; and (3) It is highly unlikely that this representation could have occurred by chance."

OCR for page 200
--> act from "required by business necessity" to "consistent with business necessity," suggesting a somewhat more relaxed burden on the defendant employer. Despite ambiguities in language, the inclusion of both business necessity and job relatedness indicates that the employer's obligation goes beyond merely articulating a nexus between the selection criteria and the job to be filled and includes a more substantial requirement that the criteria fairly reflect the requirements of the job. Under the three-step process, the plaintiff is given a further opportunity to prevail by showing either that the selection criteria are not job related or that there exist alternatives that do not have the same discriminatory effect (Griggs v. Duke Power Company, 401 U.S. 424 (1971)). After this outline of the stages of a proceeding brought under a disparate impact theory of discrimination, it is useful to examine how the process played out in some actual Title VII cases. Such an examination is particularly helpful since many of the early cases that helped to define disparate impact jurisprudence arose from challenges of the uses of testing in employment, making them particularly relevant for this paper. Griggs v. Duke Power Company (401 U.S. 405 (1975)), involved a challenge of the hiring practices of a North Carolina power company. Although the company employed both black and white workers, black employees were limited by policy to jobs in the labor department, the lowest paying of five departments in the company. Before the passage of Title VII, the only other job qualification beyond the overtly discriminatory racial policy was the requirement that all applicants to any department other than labor have a high school diploma. In 1965 the company dropped the explicitly discriminatory policy of assigning blacks only to the labor department and instituted testing procedures for the first time.10 All applicants were required to take and pass both the Wonderlic Personnel Test and the Bennett Mechanical Comprehension Test, while persons currently in the job were grandfathered into their positions. The Supreme Court overturned the decision of the district court and the circuit court of appeals, both of which had found in favor of the defendant because of an absence of a showing of intentional discrimination. In ruling for the plaintiff that there had in fact been a violation of Title VII, the Supreme Court noted that only 12 percent of black males in North Carolina were high school graduates while 34 percent of white males had completed high school. Even more dramatic was the difference in the impact of the tests. The court observed that, 10   The implication of the timing of the institution of the testing requirements will not be considered here because the focus of this discussion is on practices that have a disproportionate impact. However, evidence of the initiation of a testing requirement in the context of a case such as these may help give rise to an inference of discriminatory intent. See Metropolitan Housing Development v. Village of Arlington Heights (558 F2d 1283 (7th Cir 1977), cert. denied, 434 U.S. 1025 (1978)), holding that intentional discrimination may be evidenced by pretextual actions.

OCR for page 200
--> while 58 percent of whites had passed the Wonderlic and Bennett tests, only 6 percent of blacks had done so. On the basis of those statistics, the Supreme Court held that the lower courts had erred in dismissing the case because of an absence of discriminatory intent. Instead, the court faulted the earlier decisions for failing to address the impact of tests that were unrelated to measuring job capability (401 U.S. 432). Further refinements of the definition of job relatedness came in the case of Albermarle Paper Company v. Moody (422 U.S. 405 (1975)). Like the Duke Power Company, the Albermarle Paper Company had a history of discriminatory policies under which black workers were forbidden from working in certain departments. In the 1950s, in the wake of modernization of its facilities, the company required that applicants have completed high school. This requirement remained in effect until enjoined by court order even though there was no dispute that the new high school diploma requirement produced no discernible improvement in the quality of employees or productivity. Two years after institution of the high school graduation requirement, the company began using standardized tests to screen applicants for skilled positions. These tests, which included the Beta Examination, the Bennett Mechanical Test and later the Wonderlic Test had the same effect as was seen in the Duke Power Company case—very few black workers met the requirements for positions. Significantly for the purposes of this discussion, the reasons given by both the Duke Power Company and the Albermarle Paper Company would sound familiar to anyone who knew about the goals of the School-to-Work Opportunities Act: both companies based the newly imposed education and test requirements on a belief that the quality of their work force would improve. In Albermarle the court held that this justification did not meet the job-relatedness requirement necessary to rebut the plaintiffs' showing that the tests and graduation requirements resulted in the selection of applicants in a racial pattern significantly different from that of the pool of applicants (422 U.S. 408). Applying the standards described in Griggs, the court held that the employer failed to show by professionally accepted methods that the tests either could predict or have been significantly correlated with important work behaviors relevant to the particular job the test taker sought. In short, the court found that Albermarle's attempts at test validation fell far short of its legal requirements.11 In both Griggs and Albemarle, 11   Specific shortcomings were (1) that there were no attempts to analyze required job skills; (2) that the company failed to conduct validation studies for all of the jobs included in the individual studies; (3) that a test that existed in two forms did not correlate to a sufficient number of job groupings in either form; (4) that although the validation study compared test results with supervisor's ratings, the supervisors were given no guidance on how to make their ratings; (5) that the study focused on higher-level jobs than the tests tested and; (6) that the study focused on whites with substantial job experience while those tested lacked job experience and were not all white.

OCR for page 200
--> the fact that not all workers were tested or met educational requirements further undercuts claims of validity. Despite the challenges to some poorly constructed or validated tests, Title VII should not be seen as prohibiting the use of tests. In fact, Title VII contains a specific endorsement of professionally prepared tests that do not result in discrimination in employment decisions. This endorsement was included partly to allay employer's fears that all employment testing would run afoul of Title VII.12 Notwithstanding any other provision of this [title], it shall not be an unlawful employment practice for an employer … to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin (42 U.S.C.A. §2000e-2(h)). Although this section does permit the use of professionally prepared tests, employers should realize that the section cited above does not create an exemption for all such tests. Particularly misleading is the language describing tests "not designed, intended or used to discriminate," which suggests that tests can be attacked only when their use involves intentional discrimination. Both the courts (see, e.g., Griggs v. Duke Power Company, 401 U.S. 424) and the Equal Employment Opportunities Commission (401 U.S. 434) have made clear that this section does not impose an intent requirement in cases regarding professional tests—any test that is not job related and has a disproportionate impact against a protected group will violate Title VII. Employers must also realize that tests and educational requirements are not the only selection criteria vulnerable to challenge under Title VII and other statutes that rely on an impact analysis. Any requirement that has a disproportionate impact and is not sufficiently job related presents potential problems. With varying degrees of success, cases have been brought challenging the disparate impact and job relatedness of minimum height and weight requirements,13 experience 12   Larson (1996) describes the effect of civil rights legislation and court decisions on the prevalence of test use in the business community. In 1963, before enactment of Title VII, only 64 percent of companies used any tests, and three-fourths of those said they had reduced their reliance on tests. Another 14 percent stated their intention to halt the use of tests entirely. Larson further quotes a recent upswing in the use of tests, which he attributes to the need to measure increasingly complex skills and a realization that subjective selection criteria have become increasingly susceptible to legal challenge. 13   See, for example, Dothard v. Rawlinson (433 U.S. 321 (1977)), a successful challenge of minimum height and weight requirements for prison employment on grounds that the requirements unfairly discriminate against women; Officers for Justice v. Civil Service Commission (395 F Supp 378 (ND Cal 1975)), a successful challenge of the 5'6" height requirement for police officers as discriminatory against Asians, Latinos, and women; Craig v. County of Los Angeles (626 F 2d 659 (9th Cir 1980), cert. denied 450 U.S. 919 (1981)), which successfully challenged height standards as discriminatory against Mexican-Americans.

OCR for page 200
--> requirements,14 arrests and convictions,15 wage garnishment,16 and bankruptcy.17 Uniform Guidelines On Employee-Selection Procedures Because of the difficulty in compiling and keeping track of the myriad court decisions dealing with the use of testing and selection procedures, a practical alternative available to employers is the Equal Employment Opportunity Commission's 1978 Uniform Guidelines on Employee Selection Procedures. The Guidelines are a comprehensive collection of standards for using and evaluating selection criteria. Although not legally binding on courts, the Guidelines are entitled to "great deference" from the judiciary (Griggs v. Duke Power Company, 401 U.S. 424, 433-434).18 They therefore represent a useful, if not final, statement about the use of tests and selection criteria consistent with the demands of Title VII. The following overview touches on some highlights of the Guidelines and is not intended as an exhaustive discussion to be used in lieu of reference to the Guidelines themselves. As set forth in its statement of purpose, the Guidelines were implemented to fill a need for a uniform set of principles on the question of the use of tests and other selection procedures (29 C.F.R. Ch., XIV §1607.1). The Guidelines were intended to provide "a single set of principles which are designed to assist employers, labor organizations, employment agencies and licensing and certification boards" to comply with requirements of federal law (29 C.F.R. Ch. XIV §1607.1). The Guidelines carefully point out that employers or other parties are not required to conduct validation studies of every selection criterion. Although the Guidelines urge the use of fair and job-related criteria in all circumstances, 14   Chrisner v. Complete Auto Transit (645 F 2d 1251 (6th Cir 1981)) alleged disparate impact on women due to a 2-year experience requirement for truck drivers. 15   Gregory v. Litton Systems, Ltd. (326 F Supp 401 (CD Cal 1970) aff'd in relevant part, 472 F.2d 631 (9th Cir 1972)) challenged a disproportionate impact on blacks of a rule barring applicants who had been arrested on "a number of occasions"; Green v. Missouri Pacific Railroad (523 F 2d 1290 (8th Cir 1975)), an unsuccessful challenge to a rule barring applicants with records of convictions. 16   Johnson v. Pike Corporation (332 F Supp 490 (CD 1971)); Wallace v. Debron Corporation (494 F 2d 674 (8th Cir 1974)). 17   Bell v. Citizens Fidelity Bank & Trust Company (636 F 2d 1119 (6th Cir 1980)). 18   In a later decision the Supreme Court noted that deference was due the Guidelines but also observed that the Guidelines were not administrative regulations promulgated pursuant to formal procedures (Albermarle Paper Company v. Moody, 422 U.S. 431). For that reason the court declined to fully endorse the Guidelines and instead picked and chose among them. Areas about which there is disagreement between courts and the Equal Employment Opportunity Commission are noted in the discussion below.

OCR for page 200
--> they do not require the validation of selection procedures that have no adverse impact (29 C.F.R. Ch. XIV §1607.1). The definition of selection procedures used in the Guidelines is broad but does not include recruiting practices for purposes of affirmative action nor do they address the legality of seniority systems "except to the extent that such systems utilize selection procedures to determine qualifications or abilities to perform the job" (29 C.F.R. Ch. XIV §1607.2). The definition of discrimination in the Guidelines is straightforward: if there is a disproportionate impact19 as a result of a selection procedure in hiring, promotion, or other employment or membership opportunities on a person because of race, sex, or ethnic group and the party using the selection procedure has not followed the process for validation in the Guidelines, there is a presumption that the selection criteria were discriminatory (29 C.F.R. Ch. XIV §1607.3). Moreover, the Guidelines also oppose certain affirmative obligations on users of selection criteria regarding the consideration of alternative selection procedures. Unlike court decisions that place the burden on plaintiffs to come up with alternative selection criteria that would have less of a disparate impact (Albermarle Paper Company v. Moody, 422 U.S. 405, 25, 436), the Guidelines place a host of responsibilities on the user. For example, users are expected to investigate alternative procedures as part of a validation study; they should review alternatives after a "reasonable" period of time; and they should actively investigate any alternatives brought to their attention that might have less of a disparate impact (29 C.F.R. Ch. XIV §1607.3). Types Of Validation The Guidelines outline three acceptable types of validation studies. The first, criterion-related validity, examines whether there are data that prove the selection procedure "is predictive or significantly correlated with important elements of job performance (29 C.F.R. Ch. XIV §1607.5). Content-related validation focuses on the test or other selection criterion to decide if the content of the selection criteria represents important aspects of performance on the job for which applicants are to be evaluated (29 C.F.R. Ch. XIV §1607.5). Construct validation examines whether the selection test or procedure measures identifiable characteristics that have been determined to be important in successful performance on the job for which the candidates are to be evaluated. No matter which of the three validation methods, or which combination thereof is used, the Guidelines set forth some general instructions. These include 19   The Guidelines employ a "four-fifths" rule for determining if the impact of a selection criterion is disproportionate. Under this rule, if the "selection rate for any race, sex, or ethnic group … is less than four-fifths of the rate for the group with the highest rate [the selection policy] will generally be regarded by the Federal enforcement agencies as [an]adverse impact" (29 C.F.R. Ch. XIV §1607.4 (D)).

OCR for page 200
--> the need for documentation of validity (29 C.F.R. Ch. XIV §1607.5 (D)); adherence to standards of accuracy and standardization (29 C.F.R. Ch. XIV §1607.5 (E)); a warning against selection based on knowledge or skills normally learned in a brief orientation period and that have an adverse impact (29 C.F.R. Ch. XIV §1607.5 (F)); the need for reasonable and consistent use of cut off scores (29 C.F.R. Ch. XIV §1607.5 (H));20 and care in the use of selection procedures to determine proficiency for a higher-level job than the one being sought (29 C.F.R. Ch. XIV §1607.5 (I)).21 Users may also rely on interim selection procedures if there is substantial evidence of validity and the user is in the process of conducting a study to provide the additional information required by the Guidelines within a reasonable period of time (29 C.F.R. Ch. XIV §1607.5 (J)). Finally, care should be taken to assure that the validity tests are current (29 C.F.R. Ch. XIV §1607.5 (K)).22 The Guidelines contain technical standards for each of the three types of validity studies. These standards are too detailed for complete examination here but can be summarized as follows. For criteria-related studies, users should determine the appropriateness of the study for the particular employment context, should conduct a job analysis to determine what work behaviors or performance are important, should assure that fair measures of these criteria are used, should rely on sample subjects who represent candidates normally available in the relevant job market, should use professionally accepted statistical standards for measuring the degree of relationship between selection procedure scores and criterion measurements, and should carefully examine the fairness of procedures relied on (29 C.F.R. Ch. XIV §1607.14). Many of the same standards apply to content validity studies. Added to the list is the need for determining if tests or selection criteria closely approximate observable work situations or products and for assuring that, if prior or training experience is part of the content, there is a resemblance between the specific behaviors or skills in the experience or training and those required by the job itself. Similarly, content-validated criteria can depend on success in a training program only when there is a sufficiently strong relationship between the training program and the job (29 C.F.R. Ch. XIV §1607.14). The Guidelines recognize that construct validation studies are the most complex of the three methods and accordingly urge caution in their use. These studies require extensive job analysis indicating the work behaviors needed for successful 20   This consideration directs the user to set cut-off scores that are appropriate and consistent with normal expectations of acceptable proficiency within the work force. 21   This confusing guideline means simply that, if there is generally job progression within a reasonable period of time, the selection criteria can examine an applicant's qualifications for the higher-level job. 22   Factors to be considered in determining whether a validity study is outdated include the relationship between the particular validity strategy used and changes in the relevant job market and the particular job in question.

OCR for page 200
--> performance of the job, the important work behaviors being studied, and an identification of the constructs believed to underlie successful performance of the job (29 C.F.R. Ch. XIV §1607.14 (D)). Having identified the construct, the user must show (1) that the selection procedure is validly related to the construct and (2) that the construct itself is related to job performance (29 C.F.R. Ch. XIV §1607.14 (D)). Legal Limitations on Educational Institutions Because programs created under the act rely on the use of federal funds and the program is administered by the U.S. Departments of Education (DOE) and Labor (DOL), participants in the program are protected by a panoply of federal civil rights statutes.23 Although both departments are required to issue guidelines for each of the federally assisted programs, neither has complied with this requirement.24 Unfortunately, programs established under the School-to-Work Opportunities Act are among those without specific guidelines. Despite the failure of the two departments to promulgate specific guidelines under the act, there are specific guidelines in their Title VI regulations to suggest that assessment practices used in schools would be evaluated in a similar manner as described above in relation to Title VII. Under Title VI, educational institutions would be required to be certain that all of their assessment and credentialing practices serve legitimate educational purposes without having undue adverse impacts on classes protected under statute. Also, educational institutions would be required to prohibit any assessment practice, or indeed any other kind of practice, that include: denial to an individual of any service, financial aid, or other benefit provided under the program; distinctions in the quality, quantity, or manner in which the benefit is provided; segregation or separate treatment in any part of the program; restriction in the enjoyment of any advantages, privileges, or other benefits provided to others; different standards or requirements for participation; methods of administration which directly or through contractual relationships 23   In addition to Title VI, DOE and DOL have enforcement responsibility for Title IX (20 U.S.C. §§1681-1688 (1988)); Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794 (1988 & Supp. V 1993)); the Age Discrimination Act of 1975 (42 U.S.C. §§6101-6107 (1988)); and Title II of the Americans with Disabilities Act (42 U.S.C. §§12,131-12,134 (Supp. V 1993)). 24   See pp. 212 and 375-377 in Federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted Programs, A Report of the U.S. Commission on Civil Rights, U.S. Commission on Civil Rights, Washington, DC, 1996.

OCR for page 200
--> would defeat or substantially impair the accomplishment of effective nondiscrimination; discrimination in any activities conducted in a facility built in whole or in part with Federal funds; discrimination in any employment resulting from a program which has a primary purpose of providing employment.25 Although there are no regulations that specifically apply to these prohibitions to the act, educational partners can get some idea of the types of equity considerations that might come into play under a specific proposal by looking at the U. S. Department of Education's treatment of its enforcement responsibilities in another context. One such area relates to ability grouping or tracking. In recognition of the fact that assignment of students to different classes can result in both in-school segregation and the diminution of educational opportunities for African-American students, the Department of Education has applied criteria that were originally part of implementing regulations promulgated under the Emergency School Aid Act26 in order to assure compliance with Title VI: Grouping must be based on nondiscriminatory objective measures that are educationally relevant for the purpose of the grouping. Such measures (1) treat minority and majority students equally, (2) provide an objective assessment of student ability or achievement level, and (3) pertain to the subject areas in which students are ability-grouped. Grouping must be determined by the nondiscriminatory application of the measures. This means that the measures are used consistently for minority and majority students so that, for example, students with the same test scores are ability grouped at the same level. The grouping must be validated by test scores or other reliable objective evidence indicating the educational benefits of such grouping. Evidence of educational benefit, such as improved academic achievement or mobility to higher-level classes demonstrates whether the ability-grouping practice benefits the students in the lower groups. Although the School-to-Work Opportunities Act does not deal specifically with student assignment questions, the equity issues outlined above do have some relevance. First, the act, like ability grouping practices, has enormous potential to affect later achievement possibilities, both in terms of education and subsequent employment of students. Moreover, to the extent that a program 25   See p. 5 in Compliance Officer's Manual: A Handbook of Compliance Procedures Under Title VI of the Civil Rights Act of 1964, U.S. Commission on Civil Rights, Washington, DC, 1964. 26   The Emergency School Act of 1976 provided financial assistance to school districts undergoing desegregation. The act and its regulations were repealed by the Education Consolidation and Improvement Act of 1981, which consolidated 28 categorical grant programs into a single block grant known as Chapter 2.

OCR for page 200
--> implemented under the act involves discretion in admission or assignment, considerations like those outlined above could be implicated. So, for example, the school partner must be sure that all students are assured equal access both in terms of involvement with particular employers and in training for particular types of positions. Clearly, any program that tended to track students of a particular protected class into lower-prestige or lower-paying jobs would not only violate the intent of the act but also violate the law. Conclusion The discussion here on the validity of selection criteria is not meant to frighten or confuse but rather to show that the law and fairness demand that any standards developed in the course of the implementation of the School-to-Work Opportunities Act must balance the need for a more highly trained work force with the requirement that the new standards bear some meaningful relationship to the work that students will ultimately perform. Employers and educational institutions must be aware that selection criteria may measure less about an individual's ability to perform or learn a task than they do the person's background and culture. Accordingly, consistent with the goals of the School-to-Work Opportunities Act, employers must devise standards that will enrich the skills of students, particularly those whose access to the work force has been limited, and not serve as another in a series of barriers to a productive career. References Equal Employment Opportunity Commission 1978 Uniform Guidelines on Employee Selection Procedures. Washington, DC: Equal Opportunity Employment Commission. Larsen, Lex K. 1996 Employment Discrimination. New York: Matthew Bender.