by David Morgan & Eric Dunleavy, DCI Consulting Group

The 24th Annual Conference for the Society for Industrial and Organizational Psychology (SIOP) took place April 2-4, 2009 in New Orleans, LA. DCI staff were among those who attended and presented, in addition to other consultants, researchers, human resources (HR) professionals, managers, attorneys, and students from the I/O psychology community. Numerous sessions addressed important legal issues and challenges, particularly relevant to federal contractors and their obligations under current—and potentially forthcoming—equal employment opportunity (EEO) laws and regulations.

General themes of regulatory agency enforcement efforts were apparent across sessions, including, but not limited to:

  • Agency focus on systemic discrimination;
  • Increased pressure to justify selection procedures and identify available alternatives to tests with adverse impact, and;
  • The likelihood of augmented enforcement in the areas of compensation and reductions-in-force.

This summary reviews presentations that were intended to shed light on these, and other, contemporary EEO issues.

Making the Case for Selection Procedures: Legal-Professional Challenges and Strategies

Keith Pyburn of Fisher & Phillips, LLC and John Weiner of PSI discussed the challenges organizations face when EEO law and science disagree, or conflict to some degree. More specifically, the presenters traced the historically divisive search for valid selection procedures with little or no adverse impact. Citing a recent statement from an article in The Labor Lawyer attempting to make the case for the Wonderlic (an instrument purported to measure general mental ability), “…even the NFL uses a personality test,” Pyburn showed one example of how legal professionals sometimes misunderstand even the basics of personnel assessment and selection. Similar naivety toward advancements in testing and selection is apparent among enforcement agencies as well. The discussion focused on the following topics:

  • Situational specificity (e.g., local validation research) versus validity generalization (e.g., meta-analysis) in the EEO and scientific contexts;
  • The role of cut scores (i.e., the point that differentiates a passing score from a failing score) in adverse impact litigation;
  • How less adverse alternatives are playing a more important role in adverse impact litigation (even when tests are deemed related to the job).

Catching Up With the Supreme Court (and Congress Too)

Arthur Gutman of the Florida Institute of Technology, Eric Dunleavy of DCI Consulting and Donald Zink of Personnel Management Decisions reviewed several U.S. Supreme Court cases and other recent decisions, as well as proposed legislative and regulatory changes of particular interest to EEO professionals. The tutorial focused on the following areas:

  • Implications of the Americans with Disabilities Act Amendments Act (ADAAA);
  • Consequences of the Ledbetter Fair Pay Act;
  • Potential implications of the Paycheck Fairness Act (which, if passed, would amend the Equal Pay Act and EEO enforcement for both EEOC and OFCCP);
  • An update on adverse impact under the Age Discrimination in Employment Act (ADEA) Context (Meacham v. KAPL; Smith v. City of Jackson);
  • A review of Ricci v. Destefano, which is scheduled for oral argument before the Supreme Court. The case centers around whether canceling a promotion process after the fact is a reasonable alternative to a potential Title VII adverse impact violation or a violation of the equal protection clause of the 14th amendment.

OFCCP: Then and Now

Robert Guion of Bowling Green State University, Harold Busch of DCI Consulting, Doug Reynolds of Development Dimensions International, Eric Dunleavy of DCI Consulting, Kevin Murphy of Penn State University and Mickey Silberman of Jackson Lewis, LLP discussed the genesis of the Office of Federal Contract Compliance Programs (OFCCP), factors influencing its evolution, past and present enforcement activities, and current audit processes for systemic discrimination. The symposium focused on the following:

  • The history and creation of OFCCP and how employment testing played a role;
  • How OFCCP enforcement moved to a systemic discrimination focus;
  • Revised audit processes: cautions for test users and providers, and;
  • A descriptive review of OFCCP enforcement activity past and present.

Audits of Human Resources Programs

Irene Sasaki of Dow Chemical Company, S. Morton McPhail of Valtera and Michael Tusa of McCranie, Sistrunk, Hardy, Maxwell & McDaniel reviewed the importance of human resource (HR) program audits, and best practices in auditing such areas as compensation, benefits, payroll, selection and testing, and reductions-in-force. The roundtable discussion focused on the following:

  • Purposes, areas and risks of HR program audits;
  • How performance evaluation systems play a role in employment decision making;
  • Strategies for reviewing reduction-in-force systems;
  • Taking steps to mitigate damage, and;
  • Potential implications of the Ledbetter Fair Pay Act.

Best Practice Versus Legal Defensibility: How Much Validity Is Enough?

In a panel discussion facilitated by Hennie Kriek of SHL Americas, Wayne Cascio of the University of Colorado, Kevin Murphy of Penn State University, James Outtz of Outtz and Associates, George Thornton of Colorado State University and Paul Sackett of the University of Minnesota explored the reality of complying with legal demands in practice, and weighing the risk of legal challenge against the benefit and utility of assessment. Implications for role-players such as I/O psychologists, lawyers, consultants and line managers were discussed, including:

  • How much job analysis is ‘enough’?;
  • Strategies for transporting validity evidence;
  • How public image and perceived risk play a role in validation research, and;
  • What kinds of validity evidence are needed in certain situations?

As this summary shows, EEO and legal defensibility issues continue to be important topics to Industrial-Organizational Psychologists. This is particularly the case given recent paradigmatic shifts at EEOC and OFCCP, and the fact that the current administration in Washington D.C. views equal employment opportunity as a priority. These presentations reiterate the notion that I/O psychologists play important and strategic roles in organizations by developing selection procedures, evaluating the legal defensibility of those procedures, refining those procedures based on changing economic conditions, and staying aware of shifts in employment law and EEO doctrine.

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