by Sul-Kee Kim, David Morgan & Keli Wilson, DCI Consulting Group

DCI attended the Personnel Testing Council of Metropolitan Washington’s (PTC/MW) monthly Luncheon Meeting on April 15, 2009. Rich Tonowski, Ph.D., Chief Psychologist at EEOC, gave a presentation entitled Update on EEOC Enforcement: Perspectives from the Front Line. Tonowski provided an overview of the EEOC and its recent enforcement of anti-discrimination laws, and specifically, the role of the Research and Analytic Services (RAS) group where he works. Additionally, he discussed the EEOC's recent involvement in employee selection cases.

RAS is a branch of the Office of General Council at EEOC, and specializes in statistical analysis and employment selection issues. RAS is currently involved in cases that focus on ‘tap on the shoulder’ promotion systems, reduction-in-force, physical ability tests, pregnancy-related firings, and working conditions (e.g., disciplinary actions). RAS would take a particular interest in tests when:

  • they have been in place for a long time and adverse impact is as bad as, or even worse than, it was when it was first implemented; and
  • test developers/vendors have exhibited a “pattern of sloppy practice.”

When adverse impact does exist, RAS will look at applicant flow statistics closely and may demand a validation study and other validation evidence such as job analysis, test instrument, subtest description, cut point methodology, and evidence of a search for reasonable alternatives.

Tonowski also warned against overemphasis of the 80% rule (see Ricci v. Destefano). Specifically, he stated that a violation of the 80% rule may not signal systemic discrimination and compliance with the 80% rule may not automatically insulate a company. Additional concerns he voiced included:

  • advocacy over sound practice when the practice is misunderstood or unnecessarily scrutinized;
  • poor validation efforts; and
  • preference toward administering tests without considering consultants’ advice.

Lastly, Tonowski discussed possible roles EEOC—particularly RAS—may play in the near future. Guidance via EEOC’s website and some external training may be available; however, employee selection is not an option on the training repertoire. Interestingly, Tonowski mentioned the idea of a grand professional conference, where the EEOC and other EEO professionals could discuss current issues and best practices in the field.

Note that the views expressed in this PTC presentation were those of Dr. Tonowski and did not necessarily reflect those of the EEOC.

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