Legal Affairs

Jeffrey P. Feuquay, Ph.D., Esq.

Planes and Cars, Crashes and Wrecks

Obviously, a plane crash usually recycles more people than does a car wreck. And it draws a lot more attention - teams from the National Transportation Safety Board race in to pick through every piece of debris, the media showers us with pictures and unfounded speculation, and all wait for the next crashes (They come is 3's, you know.). With little notice, but with a tortoise's grim and quiet determination, car wrecks abound, injuring and killing more than ever considered taking the plane.

I've felt for awhile that we've been seduced by the plane crashes, that we were somehow missing the mark in our research efforts. Back in the `60s and `70s, it was well recognized that different groups of folks had different distributions of scores on a variety of measures. In fact, cognitive tests could and did often identify members of various race/ethnic groups as well or better than they could predict success on the job. Most of us suspected that some tests were not only unfair to minority and female candidates but also differed in how they predicted those candidates job performance. We also thought that tests needed to be narrowly tailored to the job for which they were used.

That thinking was reflected in the Uniform Guidelines concepts of test fairness, differential validity, and local validation. Differential validity was the first to fall, and local validation is now openly perfunctory. But, test fairness . . . ah, there's a sticky issue. The same assumptions that resulted in the Uniform Guidelines undergird the McDonnell Douglas metric for disparate impact, and that metric remains the law of the land today: a "fair" test is one on which the distribution of scores does not vary significantly by group.

Our focus on defensibility has led us to think of the impact on groups rather than the impact on individuals, to focus on plane crashes rather than car wrecks. Most of us are aware of organizations whose culture dictates discrimination against certain groups of people; they're the plane crashes. But, after working in this field as both psychologist and attorney, my sense is that here, too, car wrecks are more common.

The silent killer is discrimination by an individual on an individual. Moreover, it at least seems intuitively obvious that discrimination by one or more individuals is a prerequisite to the creation of a corporate culture of discrimination. Even when a group of workers come to me complaining about the treatment they have received at work, their complaints invariably center on one or a few perpetrators.

Assuming, arguendo, that a relatively few individuals are continuing to cause the majority of the damage, what have we done to help "deselect" those individuals, individuals who can destroy our best efforts? What have we done to help organizations predict who will engage in behavior which will irritate others on the basis of protected group status?

Our efforts to utilize creative selection processes to minimize adverse impact while retaining predictive utility, while obviously important, may miss the mark - we've shot the hare while the tortoise crawled by under our noses. Long term success depends upon a more careful examination of what we are trying to predict, a better definition of who we want to get in and get out of the workforce.

See you in court. Jeff

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. If there is a topic that you would like to see addressed in this column please let him know.