Topic: THE DIVERSITY–VALIDITY DILEMMA: OVERVIEW AND LEGAL CONTEXT

Order Description the question is;the diversity and validity dilemma that an organization can face,how can you (as a recruiter) attract the right people for my company?please highlight three strategies and elaborate on them. I attached the article. PERSONNEL PSYCHOLOGY 2008, 61, 143–151 THE DIVERSITY–VALIDITY DILEMMA: OVERVIEW AND LEGAL CONTEXT KEITH M. PYBURN, JR. Fisher and Phillips LLP ROBERT E. PLOYHART University of South Carolina DAVID A. KRAVITZ George Mason University Due to racioethnic and sex subgroup differences on predictor scores in many selection procedures, it is difficult for organizations to simultaneously maximize the validity of their selection procedures and hire a diverse workforce. One response to this diversity–validity dilemma is to revise the selection procedures, an approach developed by Ployhart and Holtz (this issue, 2008). A second possible response is to use affirmative action to increase workforce diversity, an approach developed by Kravitz (this issue, 2008). This paper briefly presents the legal context that motivates and constrains these approaches. We begin by defining key terms, describing adverse impact, and outlining the burden of proof in adverse impact cases. We then turn to the use of racioethnic minority and female preferences, summarizing some key court decisions and the conditions under which private and public employers may use preferences. Many employers desire staffing procedures that simultaneously identify high-quality candidates and help them acquire a diverse work force. Hiring high-quality candidates is essential for maximizing individual job performance and economic utility (Schmidt & Hunter, 1998). Many people believe that hiring a diverse workforce is important for social, ethical, and business reasons. The business argument for racioethnic diversity was made in an amici brief filed by 65 Fortune 500 organizations in the recent Supreme Court cases on racioethnic minority preference in college admissions: The existence of racial and ethnic diversity in institutions of higher education is vital to amici’s efforts to hire and maintain a diverse workforce, We thank the editor and three anonymous reviewers for their many helpful suggestions and recommendations. Correspondence and requests for reprints should be addressed to Keith M. Pyburn, Jr., Regional Managing Partner, Fisher and Phillips LLP, 201 St Charles Ave., Suite 3710, New Orleans, LA 70170; [email protected]. COPYRIGHT C? 2008 BLACKWELL PUBLISHING, INC. 143 144 PERSONNEL PSYCHOLOGY and to employ individuals of all backgrounds who have been educated and trained in a diverse environment. As explained in this brief, such a workforce is important to amici’s continued success in the global marketplace. (3M et al., 2003, p. 2) Similar arguments were made in amici briefs submitted by other companies, over 20 U.S. States, numerous professional societies (including the American Psychological Association), and a group of former high-ranking officers and civilian leaders of the military. The ability of organizations to simultaneously identify high-quality candidates and establish a diverse work force can be hindered by the fact thatmany of themore predictive selection procedures negatively influence the pass rates of racioethnic minority group members (non-Whites) and women. This can create a diversity–validity dilemma. Organizations may respond to this dilemma by using less valid procedures that do not decrease racioethnic minority and female group pass rates because the use of more valid selection procedures is not legally required. (An exception is the civil service context, where a state’s law may require some relationship between the selection procedure and the job in question.) This resolution of the dilemma may be considered unsatisfactory by some because it sacrifices validity. An alternative approach, which many may also consider unsatisfactory, is to reduce diversity by using a more valid selection procedure despite its negative influence on racioethnic minority and female pass rates. The purpose of this forum is to explicate this dilemma and offer strategies to mitigate its effects. Across the three articles, we summarize a wealth of cutting-edge research and best practices that may help organizations simultaneously enhance diversity, validity, and legal compliance in staffing. In this article, we briefly summarize current law and federal regulations that define the nature of legal staffing practice as it relates to the diversity–validity dilemma. The following articles discuss different approaches for addressing this dilemma. Ployhart and Holtz (2008) review research on the use of technical methods to reduce exclusion of racioethnic minorities and women in selection. Kravitz (2008) describes how affirmative action procedures can be used to increase representation of disadvantaged groups. Although these two approaches are not completely independent, each has a sufficiently distinct set of circumstances (and literature) to warrant separate consideration. All three articles focus on the United States because laws vary appreciably between countries, and most of the research has been conducted in the U.S. Nonetheless, many of the points made in Kravitz (2008) and especially Ployhart and Holtz (2008) may apply to organizations in other countries. KEITH M. PYBURN ET AL. 145 Definition of Terms Although there are many types of diversity, the papers in this issue focus on racioethnic minority and sex-based diversity, unless otherwise noted, because such diversity has dominated the legal, scientific, and business arenas. We use the term minority to reference non-White racioethnic subgroups (most typically Black, and to a lesser extent Hispanic and Asian), unless otherwise noted. The term racioethnic is used because it is the more inclusive term to capture differences in race (e.g., Black, White) and ethnicity (e.g., Hispanic, Asian); see Cox (1990). Nevertheless, if a particular law or research finding is specific to a particular subgroup comparison (e.g., White vs. Black), we refer to the specific racioethnic or sex subgroups. The Diversity–Validity Dilemma and Adverse Impact Staffing organizations requires attracting and selecting applicants into employment and then retaining employees (Barber, 1998; Schneider, 1987). This process applies to both external and internal (promotion) selection (Gatewood & Feild, 1998). Traditional selection practice is based on identification of the knowledge, skills, abilities, and other characteristics (KSAOs) most relevant to individual job performance. The relationship between KSAOs and performance is nearly always linear, so individuals with higher predictor scores should perform more effectively than those with lower predictor scores (Coward & Sackett, 1990). Unfortunately, many of the most predictive KSAOs (e.g., cognitive ability) and predictor methods (e.g., assessment centers) produce varying degrees of mean subgroup differences, with racioethnic minority groups usually scoring lower than majority groups (Schmitt, Clause, & Pulakos, 1996). In most realistic selection situations, these subgroup differences are large enough to reduce employment opportunities for racioethnic minority groups and women (see Ployhart & Holtz, 2008). If organizations cared only about criterion-related validity, the presence of subgroup differences would not pose a problem. Nevertheless, because many organizations also care about diversity and all organizations want to avoid charges of discrimination, subgroup differences result in the diversity–validity dilemma mentioned above. The remainder of this section summarizes the legal issues surrounding these subgroup differences. Title VII of the 1964 Civil Rights Act forbids discrimination on the basis of race, color, national origin, religion, or sex. The most common theory of discrimination, referred to as disparate treatment, occurs when there is evidence of discriminatory intent in the employment decision in 146 PERSONNEL PSYCHOLOGY question. In contrast, disparate impact discrimination does not require evidence of intentional discrimination. Disparate impact was first defined by the Supreme Court in its landmark Title VII decision in Griggs v. Duke Power (1971). The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. 91 S. Ct. 849, 853 (1971). After Griggs, the disparate impact theory of discrimination was used to challenge many objective selection procedures that disproportionately excluded racioethnic minorities or women from employment opportunities. This theory of discrimination was incorporated into Title VII itself in the 1991 Civil Rights Act. An unlawful employment practice based on disparate impact is established under this Title only if: (1) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and that the respondent fails to demonstrate that the challenged practice is job-related for the position in question and consistent with business necessity or; (2) the complaining party [demonstrates the availability of an equally valid] alternative employment practice and the respondent refuses to adopt such alternative employment practice. (Civil Rights Act of 1991, Section 105). In selection contexts, disparate impact is most frequently examined using statistics. The Uniform Guidelines (Equal Employment Opportunity Commission, 1978, Section 60-3.16) defines adverse impact as “A substantially different rate of selection in hiring, promotion, or other employment decision which works to the disadvantage of members of a race, sex, or ethnic group.” It is not the purpose of this article, nor is it important to the points we raise, to review how the presence of adverse impact is identified by the courts (see Bobko & Roth, 2004, for a description of various methods). However defined, a plaintiff’s presentation of a prima facie case does not (by itself) prove that a selection process discriminates against a particular demographic group. The employer can defend its use of the selection procedure by showing that it is “valid and consistent with business necessity.” Nevertheless, even if the employer does establish this defense, discrimination may still be found if there is a showing (by the plaintiff) that there is an equally or more valid procedure that equally serves the employer’s needs and has less adverse impact. As quoted above, these shifting burdens of proof for determining whether there is liability in adverse impact cases, evolving from Supreme Court decisions, were incorporated into the Civil Rights Act of 1991. KEITH M. PYBURN ET AL. 147 Because many selection procedures result in adverse impact against some groups, researchers have responded by searching for ways to minimize subgroup differences when using valid selection procedures. Ployhart and Holtz (2008) summarize best practices in this regard. Another approach is to counteract the adverse impact of the selection procedure by using other practices that increase employment opportunities for racioethnic minorities and women. These may include preferences, which we now discuss. The Diversity–Validity Dilemma and Racioethnic Minority/Sex Preferences Racioethnic minority and sex preferences refer to instances where minority status (non-White) or female status is given overt consideration in organizational practices, policies, and procedures. They are often considered within the context of affirmative action efforts. Nonpreferential forms of affirmative action, where effective, are more desirable and are discussed in Kravitz (2008). Nevertheless, because organizational decision makers may wish to use overt preferences, staffing experts should know what is legally defensible. In the following paragraphs, we briefly outline the legal status of racioethnic and sex-based preferences. Critical Court Cases The Supreme Court first addressed the question of affirmative action preferences in the employment context in the case of United Steelworkers of America v. Weber (1979). The key question was whether racioethnic minority preferences violated Title VII of the 1964 Civil Rights Act, which forbade discrimination on the basis of race, color, national origin, religion, or sex. The court concluded that the use of preferences in the private sector was legal under Title VII but only when (a) there had been substantial historical exclusion of a given group, (b) the nonpreferred group’s rights were not unnecessarily trammeled, and (c) the program had a limited duration. Wygant v. Jackson Board of Education (1986) involved a preferential layoff policy in the public sector, so the question was whether the policy violated rights guaranteed by the U.S. Constitution. The court’s decision established that any public sector affirmative action involving racioethnic preferences must satisfy strict scrutiny. The strict scrutiny test has two requirements: The preference must (a) further a compelling government interest and (b) be narrowly tailored and not unnecessarily trammel the interests of others. The only compelling government interest accepted in Wygant was a remedial measure adopted by a unit of government to address its own acts of prior discrimination. In Johnson v. Transportation Agency (1987), the court decided that consideration of sex as one of many 148 PERSONNEL PSYCHOLOGY factors (a “plus factor”) in making decisions did not unnecessarily trammel the interests of others. Most recently, the court’s decision in Grutter v. Bollinger (2003) established, for the first time, that having a diverse student body is a compelling state interest sufficient to justify the granting of affirmative action preferences in college admissions. It did not take long for the court’s decision adding educational diversity to the list of compelling government interests to find its way over to the employment arena. In dealing with a long-standing case involving the use of overt racioethnic preferences, the circuit court in Petit v. City of Chicago (2003) accepted “diversity in the police force” as a compelling interest sufficient to justify preferences in promotion to the position of sergeant on the Chicago Police Department. In this case, the court approved the city’s use of racioethnic-based adjustments to civil service predictor scores to reduce adverse impact (Tilles, 2004). Nevertheless, it is important to note that Petit is unusual in that it focused on a test administered before passage of the 1991 Civil Rights Act. It is not clear whether the court would have reached the same decision after passage of the Act. Although Petit suggests that attainment of diversity may serve as a compelling government interest, it is unlikely that this logic will permit widespread use of preferences in employment. Title VII requires that affirmative action preferences be used only to remedy “manifest imbalances . . . in traditionally segregated” jobs. This test was adopted by the court in Weber and confirmed in Johnson. Numerous courts have struck down affirmative action plans that include preferences where there is no such showing. For example, in Schurr v. Resorts International Hotel (1999), the Third Circuit struck down a preferential affirmative action plan where there was no showing of any manifest imbalance or any remedial purpose for the plan. Likewise, in Taxman v. Piscataway Board of Education (1996), the same court struck down a collective bargaining provision that required preferences with respect to layoffs to maintain the racioethnic diversity of the teacher workforce. Although both of these cases predate Grutter, the remedial requirement to justify preferences under Title VII is well established. Petit also does not allow one to conclude that racioethnic and sexbased score adjustments are an acceptable method of eliminating adverse impact. Such an approach fails to meet the second prong of the Supreme Court’s Weber analysis. Fatal to such a plan is the fact that awarding a racioethnic minority or sex group a specific score adjustment is the equivalent of the Michigan undergraduate school’s awarding of 20 points to all racioethnic minority applicants. Justice O’Connor, concurring with the majority in Gratz v. Bollinger (2003), concluded such a system was a quota and, therefore, not narrowly enough tailored to prevent unnecessarily trammeling the interests of Whites. Moreover, the 1991 Civil Rights Act KEITH M. PYBURN ET AL. 149 forbids all score adjustments such as within-group norming (i.e., using top-down hiring separately within each racioethnic and sex subgroup), a practice widely used in the 1980s to eliminate adverse impact. Therefore, overt racioethnic or sex-based score adjustments are expressly unlawful under Title VII. Post Grutter at least one court has rejected, at least at a preliminary stage, a city’s use of racioethnic segregated scoring lists as a preferential tool to provide diversity even in the face of an argument by the city that such action was required to comply with a previously entered consent decree (Dean v. City of Shreveport, 438 F, 2d 448 (5th Cir. 2006)). Although racioethnic/sex-based norming is expressly unlawful, other procedures designed to ameliorate the adverse impact of predictors have survived when challenged. Therefore, the Seventh Circuit Court, in Chicago Fire Fighters Local 2 v. City of Chicago (2001) approved the use of banding, which it described as “a universal and normally unquestioned method of simplifying scoring by eliminating meaningless gradations.” (As described in Ployhart and Holtz, banding is a procedure whereby, within a defined range, a predictor’s scores are considered equivalent.) Likewise, the practice of structuring a predictor to reduce adverse impact has been positively received in the courts. In Hayden v. Nassau County (1999), the court was confronted with the claim that the intentional development and structuring of a predictor (using some of the procedures described in Ployhart & Holtz, 2008) to diminish adverse impact was unlawful under both the discriminatory intent and disparate impact theories. The court rejected the intent claim concluding, “the intent to remedy the disparate impact of the prior exams is not equivalent to an intent to discriminate against non-minority applicants.” Summary of Legal Status of Preferences Both private and public sector employers face the diversity–validity dilemma. Under the current law, private and public sector employers may use “preferences” for the “remedial” purpose of eliminating manifest imbalances in theirworkforce. Public sector employers perhaps may institute preferential procedures to satisfy other compelling government interest (e.g., for a diverse police force), but it is unknown whether this will survive Supreme Court scrutiny. For both types of employers, the preferences must be limited in extent (so that they do not unnecessarily trammel the rights of others) and in time (to eliminate underrepresentation, but not to maintain proportional representation). Unfortunately, the Supreme Court remains substantively divided and has not clearly defined (a) what is a sufficient compelling interest to justify affirmative action preferences in the pubic sector; and (b) what is required to demonstrate that plans are 150 PERSONNEL PSYCHOLOGY sufficiently narrowly tailored and do not unnecessarily trammel the interests of the other group (in both the pubic and private sectors). Conclusion and Recommendations The use of racioethnic or sex preferences to ameliorate the adverse impact of predictors is already limited and continues to become more restricted. Nonpreferential forms of affirmative action are not an issue, nor are situations in which adverse impact is absent. This state of affairs is not as desirable as it might appear because an organization may use a less valid selection procedure simply because it has less adverse impact. 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