VALIDITY

by Bob Gregg

"Validity" is a legal term meaning "based on sound principles." If a hiring decision is challenged, the courts will want proof that the questions and the selection criteria were "valid."

The requirement for validity has come largely from court cases on discrimination. In case after case it was found that those who got hired or promoted were those the supervisor "likes," and this translated into those who were the same race, sex, or national origin as the supervisor. The supervisor's ratings of the candidates were not based on job-relatedness. The standards used for hiring were so vague and "subjective" that no one, including the courts, could figure out how the supervisor ever reached the decision, and the employer couldn't clearly explain how the hiring decisions were made.

So the courts began requiring "validity," with clear standards.

The elements of validity are:

1. Job-Related
2. Performance Predictive
3. Objective Criteria
4. Same Criteria and Same Scale for all Candidates
5. Standard Evaluation Form
6. Supervisors TRAINED in Interviewing and Use of the Criteria and Standards
7. Standardized and Controlled Process

1. Job-Related. Everything about the hiring process must be "job-related." Every question you ask, every piece of information considered must have a direct bearing on the job at issue. If it doesn't, then it has no relevance to the hiring and should be weeded out.

Job Description. A good place to start any hiring process is with a description of the duties of the job. Anything that relates back to those duties will be "job-related."

If your operation does not have formal job descriptions, then make a list of the basic duties. DON'T put down every little thing about the job--you could get tied up in triviality. Put down the basic and important duties, the “essential functions.”

In making the job description list, it's a good idea to check with employees who are in the sort of job or who have been in it. Sometimes they have a better idea, or a different idea, about what duties are significant than does a supervisor or manager who doesn't do those duties every day.

General "duties." In addition to the duties of the specific job, there are some things that apply to all jobs. No matter what the position is, all employees have a duty of regular attendance. All employees may be required to work overtime on occasion. All employees have a duty to be honest.

These "duties" are usually not found in the job description. They are "implied." However, they are clearly job-related. So you can also consider these sorts of general duties in making hiring decisions.

Be careful, though. Many employers go a bit far in lumping a lot of "general stuff" that is questionable. For example, "good oral communication skills" is frequently seen as a general consideration for all jobs in a company. In reality, there are several jobs where people hardly talk at all, so it is not job-related for those positions. That's why the courts have insisted on the next point of validity . . .

2. Performance Predictive. The factors that are considered in making the hiring decision have to be related to success in the job at question.

"Good oral communication skills" may be nice to have, but a custodian doesn't have to be a master speaker in order to clean the building well. In fact, some custodians who have extremely good oral communication skills don't do good work because they exercise that skill instead of the cleaning skills. So the "oral communication" criteria is not predictive of performance; it's not validly job-related.

A landmark case in this area was Griggs v. Duke Power, 401 U.S. 424 (1971). Duke Power required a high school diploma or a general intelligence test for most jobs.

When challenged, the company could not show how having a high school diploma made a person a better performer at unloading boxes off a truck, etc. That "criteria" had no relation to performance on the job; thus, it was not validly job-related.

Lots of companies consider college degrees or high school degrees as a criteria in hiring. To be valid, you have to be able to show that the degree (or the training it represents) means: (1) that a candidate will be more likely to perform well on the job than a person who doesn't have the degree; and (2) that you can "predict" that this person will have better performance because of the degree.

The mere existence of a "degree" is usually not predictive. A history degree won't help sell cars any better than a literature degree, a high school diploma, or no diploma.

A technical school degree in mechanics, though, is clearly performance predictive for a technician job. Any business degree is performance predictive for a finance manager job. Some positions require a license that can only be obtained by those with the proper degree. These are valid.

The message is that a lot of things sound like "desirable" criteria on the surface. Things like "good oral communications" or "college degree" on examination, though. may not have a real bearing on the specific job at issue. Each element you use in deciding who is the best candidate should be validated as performance predictive.

3. Objective Criteria. This means that the criteria used for hiring can be defined, and that a neutral party, like the courts, can look at the criteria, understand it, and see how the employer reached a decision.

Lots of words are used in the hiring process like "aggressive" salespeople, "well groomed, " "good communication skills, " "pleasant personality," "people skills" and so on. A dozen different people will each give you a different definition of these words. Often the person using these terms to make a hiring decision has only a vague idea of what they mean and only a vague idea of why a candidate "seems" to have more or less of these qualities.

This manager, when pinned down in court, probably can't explain how the candidates were "rated" against these vague criteria. Chances are that the candidates rated high were those of the same sex, race, origin or lifestyle as the manager, and the company will not be able to prove it was not a discriminatory hire.

In the case of Wade v. Mississippi Cooperative Extension Service, the court threw out performance evaluations that had a high percentage of subjective criteria. Employees had been evaluated on the criteria of "leadership," "ethical habits," "appearance," "capacity for growth," "alertness," "loyalty," "attitude toward others," "resourcefulness" and "outlook on life." There were no definitions of what these might mean, and the management could give only vague and contradictory explanations.

"Objective" requires that the terms used as major criteria in hiring be defined. Then there must be some sort of "benchmarks," "standards," "indicators" or "scale" so that you can tell whether or not the candidate is "aggressive," "well groomed," has "mechanical ability," can "type proficiently" or has a "pleasant personality," etc.

4. Same Criteria and Same Scale For All Candidates for a Given Job. In order to compare candidates, each one has to be rated against the same things or it's not a "comparison" that makes any sense. A standard process gives all candidates a more equal opportunity. The "patterned interview" is one method of meeting this requirement.

5. Standard Interview Appraisal Form. In order to prove that each candidate was rated on the same criteria and against the same scale a written record is needed.

That written record of the interview is not just a piece of evidence in case the company winds up in court. It's important for the managers who are doing the hiring. After interviewing a string of candidates, it's impossible to clearly remember them all. Some notes are crucial to that memory. If those "notes" are jumbled and disorganized, they are hard to use. So an organized, sequential format for taking notes helps. If that format is followed for each candidate, then it's a lot easier to locate information and make comparisons at the end of the process.

A standard form is not just legally important; it's the common sense way to make the hiring process more efficient and easier to manage.

6. Trained Supervisors. Every person who participates in interviewing and making hiring decisions should receive training. This includes training about non-discrimination as well as how to develop interview questions, and what the company's definition and "scale" is for the various decision criteria the supervisor will be expected to use in making hiring decisions.

7. Standardized And Controlled. Each company should have a person with responsibility for an "overview" of the process. This "overview" function assures that supervisors get training, checks the list of questions for non-discriminatory content before they are asked, spot checks (at least) to be sure that supervisors can coherently justify their hiring decisions upon objective criteria, and assures that those conducting a hiring process follow the right steps.

This overview function keeps the process from getting out of hand, keeps abuses at a minimum, and keeps the hiring process valid.

Bob Gregg is a partner at Boardman Law Firm of Madison, Wisconsin. He has over 30 years of experience in employment relations and has conducted over 2,000 seminars on employment law. Bob’s career has encompassed canoe guide, carpenter, laborer, Army Sergeant, social worker, educator, business owner and EEO officer. Bob’s emphasis is to help employers identify and resolve problems before they generate legal action. He has designed pay and absence policies, and solved salaried position issues, for numerous private and public employers.

Copyright © 2005 by Robert E. Gregg. All rights reserved.