Legal Affairs

Jeff Feuquay, Associate Editor

Political Wind Sweeps the Bench

You're a Psychologist hired by a company to develop selection procedures for new employees. The manager calls you into his office and privately tells you that he needs you to keep them from being sued and to help them maintain the 'corporate culture.' The employees get along pretty well and he wants to make sure no minorities get recommended for hiring based on your tests. What do you do?"

That's the essence of the final question on the oral portion of my Psychologist licensing exam many years ago. Four senior Psychologists waited expectantly for the obvious answer -- using tact, diplomacy and data, change the manager's thinking if you can. But, regardless, don't do what he says he wants.

As many or most members know, a debate/discussion has been raging in the Wall Street Journal and on the IPMAAC List concerning the development and use of a Nassau County police entrance exam. Detractors contend the exam sacrifices predictive validity on the altar of inclusiveness. They also assert that the U.S. Department of Justice has seemingly forced the adoption of a particular exam. The exam obviously also has strong, rational proponents. To me, the debate was reminiscent of my licensing exam and spoke volumes on a growing schism within our field. It was especially interesting in context; it followed on the heels of one concerning whether personnel assessment is a profession. It would appear that we are a mix of theorists and pragmatists -- a pragmatist possibly being a theorist worn smooth and polished by the political wind. Public sector leaders are known for their ability to respond to political changes . . . this is not an alien concept. But, this debate implies the practitioners are becoming much more attuned to their environments. Possibly in our efforts to add value to our products, we have become embroiled in a debate over the criteria we are to predict, an ethical rather than technical dilemma. But our focus on that dilemma, normally heretofore reserved to those aforementioned public leaders, may define us as a profession. We have little choice but to enter the fray. Professional ethics would appear to be a hallmark of any profession. As Elihu said to Job and his buddies, "Let us choose what is right; let us determine among ourselves what is good."

What do these new issues portend on the legal front? Let's look at an example we will likely hear more about. Sharon Taxman and Debra Williams were equally qualified, tenured teachers, hired on the same day nine years before the Piscataway Board of Education determined in 1989 that it needed to eliminate a teaching job in the Piscataway High School business department. The progressive Piscataway Board had an affirmative action plan in place for 14 years prior to the layoff, a plan that encouraged hiring based on diversity when candidates appeared to be equally qualified, and the Board had apparently never discriminated on the basis of race. However, the layoff decision was based on race -- Taxman, white, was laid off because Williams was the only minority teacher in the business department. After filing with the EEOC, Taxman took her complaint of "reverse" discrimination to federal court where she was awarded $144,000 in back pay and damages (although she had already been rehired). The appeals court upheld that decision, finding that race-conscious decision-making is prohibited by Title VII unless it is done to remedy past discrimination. The Board has appealed that decision to the U.S. Supreme Court.

But, the "rest of the story" is borne on the political wind and certainly more telling than an appeals court simply re-announcing a standard we're familiar with. Under the Bush administration, the Department of Justice entered the case at the appeal level in support of Taxman and in opposition to "reverse" discrimination. But, upon President Clinton's arrival, the wind shifted and Justice attempted to change sides, i.e., the same federal agency now wanted to argue on the side of the Piscataway Board. The appeals court, apparently uncertain as to which shell the pea was under, simply and wisely treated the attempt to change sides as a request to withdraw. Parenthetically, one can only speculate as to where Justice would stand on the Nassau County issue under a different administration.

Now our Supreme Court is trying to decide whether to hear the case. The genius of our system is that the United States has a Supreme Court specifically designed to be counter-majoritarian, designed to decide whether majority-induced statutory mandates pass Constitutional muster. In deciding whether to hear the case, the high court has asked the Clinton administration lawyers what they think -- did the Board act illegally when it fired the white Taxman rather than her equally qualified black peer? Is it discriminatory to promote diversity absent evidence of past discrimination? The Court's efforts to determine under which shell the administration has currently hidden the pea are both reasonable in terms predicting future legislation and chilling in light of the Constitutional role of the Court.

If, as it appears, federal enforcement agencies swing in the wind and even our top court is attune to the political climate, where can we look for guidance? Although the defining characteristics of a "profession" were somewhat elusive in the IPMAAC discussion, there appeared to be general agreement that Personnel Assessment should be one. One criterion, I would assert, of a professional is that his/her decisions are based on a cohesive zeitgeist founded on scientific research. For example, new developments in medical science and technology may allow a physician to set a fracture better and cheaper. But, the physician remains clear that changes in practice parameters brought about by HMO's, capitation and the like in the name of cost control are not new developments in medical science. Cost controls are every bit as real and may possibly lead to improvements in services, but they are not founded in the professional medical zeitgeist. As a result, physicians tell us the new standards being imposed are putting the public at risk, while insurers tell us the new standards will allow competent medical care to be provided at a more reasonable cost. This dynamic tension will achieve a new balance, simply because it must; physicians and insurers, theorists and pragmatist, will come to terms. But, they must come to terms solely because people refuse to be without medical care.

Theorists and pragmatists within our own arena must come to terms only if people refuse to be without personnel assessment. Objectivity, fairness, professionalism and a cohesive ethical zeitgeist seem key. "You're a Psychologist hired by a company to develop selection procedures for new employees. The manager calls you into his office..."

Jeff may be reached at P.O.Box 646, Perry, OK 73077-0646, Phone: (405) 336-4145, Fax: (405) 336-5377, Net: jeff@feuquay.com