Bell Curve

660 Appendix 7 Appendix 7 66 1direction, affirmative action policies evolved toward greater reliance ondisparate impact as the touchstone of illegality rather than on discrimeinatory intent or disparate treatment. As in Grigs, the Supreme Courtin 1975, in Albemark Paper Co. v. Moody," considered a case in whichan employer used intelligence tests (among other criteria) to selectworkers for well-paying jobs. Once again, black applicants, who earnedlower scores than white applicants, brought suit.*?he Court reaffirmedthe general outlines of Griggs, but in filling out details, it provided threesteps to follow in proving that an employment test was in violation ofTitle VII (as amended). First, the Court said, a complaining party mustshow disparate impact. This involved a statistical proof that those whowere hired or promoted on the basis of the test included significantlyfewer members of a protected group than random selection from the applicantpool would have produced. Given this proof of disparate impact,the burden of proof shifts to the employer, who must now prove thatscores on the test have a proven and vital relationship to the specific jobthey were hired for. The criterion expressed in Grigs, "business necessity,"was carried forward into Albemarle. If the employer passes this hurdle,the complaining party can offer evidence that the employer couldhave used a different hiring procedure, one that was as effective in sealecting workers but without the disparate impact. If this can be shown,then, the Court ruled, the employer has been shown to have discriminatedillegally by failing to have used the alternative procedure.'2"Other federal authorities besides the EEOC were monitoring and promotingaffirmative action in the workplace. In the mid-1970s, as inconsistenciesbegan to crop up, pressure built up for coordinating asbroad a slice of the federal involvement in affirmative action as possible.After some false starts, the Uniform Guidelines on Employee SelectionProcedures were adopted in 1978 by EEOC, the Civil ServiceCommission (later called the Office of Personnel Management), theDepartment of Justice, the Department of the Treasury, and the Departmentof ~abor.*' At this writing, they are still in force. The Court'sdecisions in Griggs and Alhemarle set the broader framework for the UniformGuidelines, hut further details were elaborated, in some respectsincreasing the pressure on employers using tests. For example, the UniformGuidelines held-in contrast to the Court in Alkmarle-that theemployer has a responsibility for seeking less discriminatory selectionprocedures, a rather different matter from giving a complaining partythe opportunity to do so, as the Court had decreed.VALIDATING EMPLOYMENT TESTSThe Uniform Guidelines attempt to define a unified approach to affirmativeaction in the workplace, but practices still vary, and there continueto be new laws and new interpretations by courts. But they comeas close to a policy consensus as anything does. They also reveal the underlyingassumptions about the facts. On the matter of test validation,the Guidelines espouse the stringent "business necessity" requirementheld in Griggs and Albemarle. They provide detailed requirements forvalidating tests. Without submerging our readers more deeply in technicalminutiae than seems appropriate here, let us say that the UniformGuidelines lean sharply toward criteria that would be hard and expensivefor employers to meet, even when cheaper or easier methods almostcertainly would have been more effe~tive.~' General ability tests, readilyavailahle and widely standardized, are rarely acceptable to the EEOCor the courts, ilnless the employer goes through the difficult, if notimpossible, and, psychometrically speaking, needless, process of restandardizationof an established test. To validate a test, an employerneeds a measure of performance. The govemment typically rejects measuresof training performance and supervisor ratings. As Chapter 3detailed, both training scores and supervisor ratings may be suitablemeasures of performance, and they are relatively easy to obtain. Themeasures usually required by the government are all but impossible toobtain, especially for job candidates who are not hired.Despite an air of rigor and precision in discussing validation, neitherthe EEOC nor any other branch of govemment involved in administeringaffirmative action policies has shown any interest in evaluating justhow predictive of worker performance the stringent and costly validationprocedures it demands are, or whether there is any gain in predictivepower when they are used. The thrust continues to he, as it has beenfrom the beginning, to increase the numbers hired or promoted from theprotected groups, based on the underlying assumption that, except fordiscrimination or the legacy of past discrimination, the protected groupsshould he equally represented across the occupational spectrum.DISPARATE IMPACTAccording to the Guidelines, an employer that comes under their jurisdictioncan expect to be required to validate a test-that is, to proveits business necessity-if there is disparate impact. And, the Guidelines