Valid Selection and Performance Appraisals DO Make a Difference!

1. Valid Selection and Performance Appraisals DO Make a Difference! Dr. Stan Malos, J.D., Ph.D.

2. Author/Title of Article: • Malos, S. B. (2005). The importance of valid selection and performance appraisal: Do management practices figure in case law? In F. Landy (Ed.), Employment Discrimination Litigation: Behavioral, Quantitative, and Legal Perspectives, pp. 373-409. San Francisco: Jossey-Bass.

3. Key Terms: • Validity—The extent to which a selection device [e.g., test, interview] effectively screens for hiring by predicting likely performance among applicants • Validity Generalization—The process of applying results from previous validity studies in other contexts similar to the present one • “UGLs”—EEOC’s Uniform Guidelines on Employee Selection Procedures

4. Case Examples re: Selection • Allen v. City of Chicago: Police promotional process that adversely impacted minority candidates upheld due to job analysis and content validation in accordance with the UGLs • Williams et al. v. Ford Motor Co.: Ability test for production workers that adversely impacted minority candidates upheld due to job analysis, content & criterion validation, and validity generalization in accordance with the UGLs • Ass'n of Mexican-American Educators v. State of California: Defensibility of basic skills test (reading, writing, math) for public school teachers that adversely impacted minority candidates upheld due to adequate evidence of reasonable test development and cut scores in accordance with the UGLs

5. Case Examples re: Performance Appraisal (PA) • Hawkins v. Pepsico: Termination for performance based on allegedly discriminatory PA upheld; case just an "ordinary workplace disagreement" where rater/ratee races differed • Spears v. Department of Corrections: Reduction of appraisal from "highly successful" to "successful" (plaintiff quits and claims constructive discharge) upheld due to well-accepted rule: “negative” appraisal w/no tangible harm not actionable • Cullom v. Brown: Delay in minority employee's promotion due to wrongly favorable PA, without which employee would have known sooner that performance had to improve, not actionable (no harm); retaliation claim also fails where bad employee promoted due to undeserved favorable rating!

6. More Examples re: Performance Appraisal • Mayer v. Nextel: Failure to put over-40 employee on PIP prior to firing when others were upheld; only managers who failed to meet quota were placed on PIPs, and plaintiff in fact met quota • Sauzek and Koski v. Exxon Coal USA: Lower appraisal scores prior to RIF, allegedly suggesting age-related pretext, upheld; scores for those over & under 40 fluctuated about the same • *Cerutti et al. v. BASF: RIF criteria developed pursuant to new business plan designed to "repopulate" company with those who could "do more with less“ -- but which disregarded prior favorable PAs-- upheld due to plaintiffs' inability to establish qualifications under new criteria (thus rendering pretext moot -- for failure to make out a prima facie case!)

7. Take-Home Message • Courts gaining sympathy for employers who take reasonable steps to validate selection processes and update performance criteria in changing business realities -- even if done just before a RIF! • Still, employers should stay current and validate hiring, promotion, or retention criteria to enhance performance effectiveness and legal defensibility!