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Washington's Fitness of Duty Test
Fitness and ability as requirements, fitness usually meant social status or prestige rather than technical competence. He chose public servants from politically powerful sectors of society. Requirement for public service was support of new federalist system of government. Washington consulted with Congress and preferential treatment was given to veterans.
Washington focused on trying to bring in men (not women) who were competent to perform public service who were within the federalist party. Washington relied primarily on his on subjective judgment, and the judgment of the his cabinet members. Washington did apply some criteria for selecting people including things like loyalty to the new constitutional system, family status (it helped to be wealthy), reputation (were you well liked and well known in your community and your church), and proven ability (prior service as an officer in the Revolutionary Army helped). One other thing Washington did was make sure his appointments included people from all the different states composing the Union. He did this because he thought broad representation of different geographic interests in the government would be helpful in sustaining it. He accomplished this by freely consulting with leaders from the various states, especially members of Congress. In fact, a holdover from this practice still exists to day in the form of “Senatorial Prerogative” – the idea that a President will consult member of the Senate (and members of the House) from his political party about nominations affecting appointments to federal positions in their particular state.
Jackson's Rotation in Office Theory
Idea that everyone has the capacity to serve, no one is entitled to serve and that periodic change in government was essential in securing the will of the people be followed. Limitation of four years would ensure this happened. Through Jackson’s ideas, an new political party emerged, the Democratic Party.
Jackson believed every man was allowed to participate in government, whether at the ballot box or in actual service within the government. Instead of government service being something reserved to elites, it ought to be spread around to include the common people as well. To accomplish this objective, Jackson formulated what he called the “doctrine of rotation”, wherein service in government positions would be limited, periodic removal from office would be mandatory, everyone would have a right to be considered, and the majority political party in charge would have free reign to see the doctrine was carried out.
AKA Patronage System. Jacksonian Democrats. Political appointment from the party. Spoils system created a situation in which public funds were spent on Hr that did not always contribute significantly to the mission of the agency. Often public employees spent little of their time in actual work while instead they engaged in political activities.
Classification Act of 1853
In 1853, Congress organized government clerical work into four grades plus the grade of chief clerk. But this act did not create a position classification system in the modern sense of the term. It lacked provisions to ensure that work of comparable difficulty or responsibility would be assigned to equivalent grades. Instead the act merely provided that the pay for any particular clerical position must come from the menu of choices it designated. This act was one of the first attempts for federal government to classify positions in a merit based manner, however, it did not ensure that comparable work was assigned to equivalent grades.
Grant's Commission on Civil Service
Grant established a Commission to conduct the study and sent them abroad to examine the British civil service system. The Commission recommended that the US consider adopting a system similar to the British one that conditioned appointment on the basis of demonstrating the technical competence necessary to do the job. What we would call “merit” today. Reluctantly, Congress went along with the Commission recommendation, authorizing a two-year experiment with merit-based selection. However, Congress, and the Republican Party never really wanted this new system to succeed because patronage was just to good a thing to give up. When funding ended for the program after two years, Congress failed to authorize any more money and the experiment with merit abruptly ended.
He disliked the task of handing out patronage and was also a supporter of merit. In making appointments, Garfield erred on the side of competence. This cost him dearly. One partisan Republican, Charles Guiteau, he passed over for appointment got so mad at the President, he assassinated him. When the country found out the reason why the assassin struck, the public was outraged. Citizens organized behind special interest groups calling for reform of the appointments process and the Patronage System.
Civil Service Act of 1883
A new system that called for merit-based appointments after open competition among job candidates, and provided protection from being politically removed. The system was to be headed by a “bi-partisan commission” who would be responsible for day-to-day administration, thus removing the appearance of politics in the selection process. This legislation was called the Civil Service Act of 1883 (“CSA”), or the “Pendleton Act” after its chief advocate, Senator George Pendleton. The Act passed Congress, but not before it was amended to only cover 10% of the federal workforce, and then only those who worked outside of Washington, D.C. Thus “reform” took place but it just did not affect very many federal employees, consequently. Patronage was largely preserved, at least for the moment.
An open, merit based, competitive selection system.
Frederick Taylor (Taylorism). Theory of management that analyzes and synthesizes work flows. Improved efficiency and labor productivity. Job analysis epitomizes the principles of scientific management and budget transparency that enables them to control the spoil system.
Classification Act of 1923
This law mandated that the bi-partisan Civil Service Commission conduct a comprehensive study of each job in the civil service for the purpose of classifying those positions and creating written job descriptions that would describe the duties and competencies required for each position in the Civil Service. This law made it easier to develop testing methods, using principles of Scientific Management, to identify competencies in job applicants necessary to do a particular job, thus making merit selection more achievable. Created the GS pay schedule.
Hatch Act of 1939
Promoted by Franklin Roosevelt’s administration, placed strict limitations on the ability of elected political officials from interfering in the operations of the federal civil service. The law also prohibited federal employees in directly engaging in many partisan political activities. For example, the prohibited civil service employees from campaigning for partisan candidates (thus restricting free speech), from holding office in a political party (thus restricting freedom of association), and from running for partisan political office while serving in the career service. This restrictions on constitutional rights were upheld by the U.S. Supreme Court, who reasoned that the government’s compelling interest in having an efficient and effective workforce outweighed the interests of the individual employees in freely exercising their 1st Amendment rights.
New Deal Legislation- FLSA, SSA, NLRA
Federal Labor Standards Act: employees are entitled to a variety of rights regarding their pay, provided they are covered under the act. Covered employees include employees who are paid on an hourly basis, not salaried. Employees covered by the law have 1) the right to receive overtime pay at the rate of 1 and ½ times their regular rate of pay for hours worked in excess of 40 hours per workweek; 2) the right to have one day off in sever, or the equivalent thereof; 3) such other regulations as the Department of Labor may establish.
Established minimum wage, guaranteed overtime in certain jobs, prohibited child labor.
SSA: Social Security Act, provided retirement benefits and funded through payroll tax.
NLRA:National Labor Relations Act of 1935. Law only applied to private sector employees but would serve as a model for all collective barraging laws to follow, including public sector collective bargaining laws. The NLRA established by statute every private sector employee’s right to form and join a union. It made it unlawful for any employer to attempt to block an employee from joining a union or retaliating against one for doing so. It established a process for union elections and provided that, if elected by the employees as their bargaining agent, employers had to negotiate with the union regarding the wages, hours and working conditions of its employees. The law also established a commission, the National Labor Relations Board, to oversee the law’s implementation and to enforce it against employers who attempted to ignore it. In its entire history, the NLRA has only been amended two times, once in the 1940s and once again in the 1950s. It has remained largely unchanged and is still viable law today.
Creation of Schedule B in 1953
- The Eisenhower Administration (1953-1961) – building Schedule B
- A goal of the Eisenhower Administration was to further political responsiveness. Eisenhower harbored doubts that very many of the career service employees working in the government shared his “Republican” policy priorities or his general political agenda. In short, he feared most federal employees, selected under Democratic administrations, were themselves Democrats and would not work enthusiastically for the new President. . Yet, because these employees were protected by their career civil service status, he could not replace them easily. Eisenhower hit upon a solution for his problem, change the career service by removing all policy related positions from the traditional civil service and put them in a new personnel system, where appointment would be based not only on merit but also on political party affiliation. To accomplish this, Eisenhower took the existing structure, which was divided into two schedules –Schedule A for traditional political appointees (like the various department secretaries and assistant secretaries), and Schedule B for the Career Civil Service (merit-only based) employees, and took away all policy related positions in Schedule B, and put them into a newly created Schedule C. As noted above, Eisenhower then used both merit and party affiliation criteria in making Schedule C appointments. Eisenhower’s administration showed a transitioning point in which schedules were created to maintain patronage appointments for certain positions to contribute to political responsiveness of the political party, but also at the same time kept Schedule B appointments to uphold the forming merit system that had been born from the response of the growing trust of a fully spoils based system.
Brown v. Topeka Bd. of Ed 1954
The first major battle in the war for real political and economic equality was waged in a courtroom. African Americans challenged “Jim Crow” segregation laws. The battlefield was in Topeka Kansas, where the local school board had divided the district into two distinct school systems, one for whites only, and one for blacks. Although justified under the “separate but equal” doctrine, these two systems were separate but unequal in almost every way (facilities, budgets, teachers, library books, etc.). Oliver Brown, an African American minister, brought suite on behalf of his daughter and other children, challenging the validity of a duel education system under the 14th Amendment, equal protection clause of the Constitution. Writing for a unanimous Court, Chief Justice Earl Warren (a Californian) wrote that the doctrine of separate but equal was inherently flawed, striking down the legality of racial segregation once and for all. Although Brown was a great legal victory for the African American community, it did little, if anything, to improve its economic circumstances.
Executive Order 10988(1961)
President Kennedy issued Executive Order 10988 giving federal works very limited “meet and confer” (bargaining) rights.
Equal Pay Act 1963
Prohibits pay discrimination by requiring employers to provide equal pay for equal work regardless of the employee’s gender. The purpose of the EPA was to eliminate historical gaps between what employers had paid men and women working in the same jobs. Under the EPA there are four exceptions where it is permissible to pay people differently for doing the same job. Exceptions include: 1) differences based on seniority rules; 2) differences based on individual productivity; 3) differences based on individual qualifications; and 4) differences based on working conditions (i.e. shift differentials for night and graveyard shifts).
Civil Rights Act 1964
President Lyndon Johnson signed into law the Civil Rights Act. The law made it unlawful to discriminate on the basis of race, ethnicity, religion or sex in employment and public accommodations. It created the Equal Employment Opportunity Commission (“EEOC”) to monitor and enforce the law against those who continued to discriminate. It made it possible for victims of discrimination to sue those who violated the law.
Executive Order 11246 (1967)
African Americans still found themselves blocked from job opportunities, not to mention the disadvantages associated with nearly 300 years of legal discrimination, before the Civil Rights Act passed. Seeing this reality, President Lyndon Johnson hit upon a plan for fostering real change.
President Johnson issued Executive Order 11246 requiring everyone doing business with the federal government to be held accountable for showing real progress when it came to advancing economic opportunity for all. He called this program Affirmative Action, because employers had to show that they were taking affirmative actions in their businesses and organizations to end discrimination and achieve the goal of equal opportunity. A new system of personnel management was born -- a system of accountability, a system of access, a system of achievement.
Age Discrimination in Employment Act 1972
Prohibits discrimination on the basis of age in employment for people who are over 40 years of age. The law protects people over 40 from having their age be a factor in decisions regarding employment, promotion, retention, layoff, or compensation.
Prohibits employers from using pension plan provisions to force older employees to take early retirement.
Equal Employment Opportunity Act of 1972
Made the Civil Rights Act applicable to all state and local governments as well. The law also strengthened the enforcement powers of the EEOC, and made state and local governments who received grants or had contracts with the federal government accountable under Ex. Order 11246 (thus they had to comply with Affirmative Action requirements, too).
Rehabilitation Act 1973
Prohibits discrimination on the basis of disability in programs ran by federal agencies, programs that receive federal assistance, federal employment, and employment practices of federal contractors.
Bakke v. University of California 1978
Bakke, a white-male, medical school applicant, had been denied admission to the University’s medical school. The school had 100 openings in its first year class. The University had an affirmative action program that called for 16 of these positions to be set aside for women and minority applicants, only. The University thought that it was imperative that both women and minorities be represented in the medical school so as to enrich the learning experience and fulfill its social responsibility as a public university. Under this program, the University admitted some female and minority students with GPAs and test scores that were slightly below Bakke’s. Bakke sued the University, claiming his right to equal protection under the law was violated by the University’s affirmative action plan, and further, that Affirmative Action itself was unlawful under the 14th Amendment. In a split, five to four, decision, the Court upheld the constitutionality of Affirmative Action (i.e. it did not violate the 14th Amendment), but held that this particular program, which set aside a specific number or “quota” of sets was a violation of the 14th Amendment. Thus, while Bakke won his case, Affirmative Action as a viable system of managing equal opportunity was upheld.
Upheld that race be allowed as one of the factors for admission but banned a set aside number. NO QUOTAS!
Civil Service Reform Act 1978
First, the law eliminated the Civil Service Commission entirely. Second, the law created Office of Personnel Management (“OPM”) and the position of Executive Director of OPM. The OPM and its Director reported directly to the President and were accountable directly to him for all personnel policies. The OPM Director served at the pleasure of the President, thus making him a partisan political employee. Third, the law carved out the very top career civil service jobs (chiefly top administrators and managers) from the merit-based civil service system and transferred them to the newly created Senior Executive Service (SES). Service in the SES was made “at-will” and performance review of SES employees would be conducted by higher-up partisan political appointees. These “reforms” caused several critics to suggest the impending doom of merit and a return to “business as usual” patronage or spoils appointments. Others hailed the changes as much need steps to increase the President’s executive control of the federal personnel process. Regardless of your point of view, merit-based selection and retention of federal employees suffered a setback.
Distributed functions among three agencies: Office of Personnel Management (OPM), Merit Systems Protections Board (MSPB), and Federal Labor Relations Authority (FLRA). FLRA authorized to mediate disputes between federal unions and agency managers. Federal employees can still not bargain over wages and benefits because Congress sets that.
TITLE VII: codify federal employee bargaining rights in a federal statute.The Federal Labor Relations Act (“FLRA”) provided that employees could form and join unions, meet and confer over hours of work and working conditions, but not wages, and through their unions enter into binding contracts. However, under the law, federal workers were barred from striking, and could have a contract imposed on them if contract negotiations reached an impasse.
Americans with Disabilities Act 1990
Prohibits discrimination in employment based on an actual or perceived physical or mental disability.
ADA also requires that employers make reasonable accommodations for an employee’s disability if they are otherwise able to perform the essential functions of a job.
The extent to which an employer must make reasonable accommodations is based on the employer’s ability to pay, thus large employers may be deemed more able that smaller ones to make such accommodations.
Family and Medical Leave Act 1993
Prohibits discrimination against employees who absent themselves from work to take care of their own serious medical condition or the serious medical condition of a child, spouse, or parent. Under the law, “qualified employers” are required to provide up to 12 weeks of unpaid leave to a “qualified employee” for this purpose, however, the employer is required to continue the employee’s medical insurance benefits during the leave period.
Gutter v. Bollinger 2003
University of Michigan law school case concerning legality of affirmative action. School was sued by white applicants who were denied admission. University used race as one factor among many in the admissions process, but did not utilize a numerical procedure. Court ruled in favor of University, implying that the court would look favorably upon broader, more tailored affirmative action programs.
California Prop. 209
Constitutional amendment that prohibited state government institutions for considering race, sex, or ethnicity specifically in the areas of public employment, public contracting, and public education.
- Value: Political Responsiveness
- The belief that government answers to the will of the people expressed through elected officials.
Washington's Fitness of Duty Test, Jackson's Rotation in Office Theory, Spoils, Garfield's assassination
: Cabinet Appointments, Federal Judges, Supreme Court Justices
- Value: Efficiency
- The desire that government should be employed with the most competent people to provide the best services.
: FAILED merit: Classification Act of 1853, Grant's Commission on Civil Service. Pendleton Act 1883 (Civil Service Act), Scientific Management, Classification Act 1923, Hatch Act 1939, Schedule B in 1953, Civil Service Reform Act 1978
: OPM: develops, implements, and evaluates personnel policies,
Labor Relations/ Management Relations
- Value: Individual Rights
- Citizens should be protected from unfair actions of government officials. Recourse for unfair actions can either be managed by merit systems or collective bargaining agreements.
: New Deal Legislation (individual protections): SSA 1935, NLRA 1935, FLSA 1938,
: MSPB: hears appeals of employees who claim their rights have been violated. FLRA: oversees collective bargaining relations
Affirmative Action/ Workforce Diversity
- Value: Social Equity
- Emphasizes fairness to protected groups: minorities, women, disabled, and veterans that have historically been discriminated against in the past regardless of qualifications.
: Brown v. Board of Edu Topeka 1954, Equal Pay Act 1963, Exec. Order 10988 (1961), Title VII of the Civil Rights Act 1964, Exec. Order 11246 (1967), Age Discrimination Act 1967, Equal Opportunity Act 1972, Rehabilitation Act 1973, Bakke v. UC Regents, Americans w Disabiltities Act 1990, FMLA 1993, Gutter v Bollinger 2003
Employment in the US, following English common law, is presumed to be “at-will.” This literally means that an employee’s job can be terminated at the will of the employer for any reason at all or for no reason at all, so long as the reason for termination, if there is one, is not unlawful (for example, racism or sexism). You can only get around the presumption of “at-will” employment if you can show evidence of an express or implied contract of employment, that shows that the employer must have good cause (a good reason) for the termination.
Under the Fair Labor Standard Act (1935): 1) the right to receive overtime pay at the rate of 1 and ½ times their regular rate of pay for hours worked in excess of 40 hours per workweek; 2) the right to have one day off in sever, or the equivalent thereof; 3) such other regulations as the Department of Labor may establish.
State pension laws, where enacted, give state and local government employees rights regarding the terms of their state or locally sponsored retirement plans.
Today, the organized labor movement, particularly in the public sector, is under attack by conservative political interests and the broader business community.
Attempts to stop the ability of employee unions from using a portion of union dues to fund political lobbying efforts in support of workers’ interests
Limiting the scope of bargainable issues for public employees (i.e. Wisconsin, Ohio, Florida, Indiana, Utah, Washington, and New Jersey).
Unions were essential to securing workplace rights and employee fringe benefits. Unions pushed to have rights and benefits negotiated into their collective bargaining contracts with employers. Thus these rights and benefits were given the protection of “contract law.” Once they were negotiated, employers could not change them until the contract expired, or unless the union agreed to renegotiate the contract.
While Congress has the ability to regulate private sector labor relations under its power to regulate interstate commerce, the 10th Amendment gives states the right to regulate their own employees. Further, because local governments are considered legal creatures of the states, under the famous “Dillon Rule”, states are also free to regulate local government employees. This means there cannot be a single law government public sector labor relations. Consequently, the federal government has enacted law (the FLRA) to govern labor relations with its employees, and each of the states are free to adopt laws governing there employees.
. In the federal government, the board is called the Federal Labor Relations Authority (“FLRA”). Most states call their boards the Public Employment Relations Board (“PERB”) or some variation thereof.
Although the FLRA/PERBs have primary jurisdiction over labor relations matters, their decision can be appealed in the appropriate courts. For FLRA the appropriate court would by the US District Court. For PERBs it would be the closest state trial court. Once a competent court establishes jurisdiction, subsequent court rulings are appealable like any other case would be.
In 1913, Congress established the federal Dept. of Labor giving employees a public agency that sought to enact regulations to protect worker rights.In 1926, Congress passed the Railway Labor Act giving rail workers the right to join unions and to collectively bargain with their employers.In 1932, Congress passed the Norris-LaGuardia Act prohibiting courts from issuing injunctions against unions for conducting union activities and making “yellow dog” contracts illegal.In 1935, Congress passed the National Labor Relations Act (“NLRA” or the “Wagner Act”) giving all private sector workers the right to form and join unions and the right to collectively bargain with their employers and the right to strike. The law spelled out unfair labor practices and created the National Labor Relations Board, which was empowered to enforce the law.
Executive Order 11491 superseded and replaced Ex. Order 10988. it strengthen the language granting federal employees the right to join unions, the requirement that federal agencies bargaining in good faith with federal unions, prohibited federal employees from striking, and set the formal scope of bargaining. Executive order 11838 established a list of unfair labor practices, modified conditions for union recognition by management, limited federal employees remedies to either union remedies or statutory remedies but not both (for example, an employee had to choose to bring a claim of unlawful discrimination either as an employee grievance under the collective bargaining agreement or as a formal complaint with the EEOC, but couldn’t do both). The slide also covers the enactment of California’s first collective bargaining law, the Meyers-Millis-Brown Act (“MMBA”), which covers local government employees giving them the right to join unions and meet and confer with their employers over bargaining issues and create “memoranda of understanding.” The MMBA, even though a “meet and confer” law, has been deemed by the California courts a collective bargaining law, and that a “memorandum of understanding” holds the same status as a “collective bargaining contract.”
In 1978, Congress took the leap and codified the previous presidential executive orders (10988, 11491, and 11838) into a federal law. The Federal Labor Relations Act (“FLRA”), which was made a part of the overall Civil Service Reform Act of 1978, largely maintained the labor rights that had been established under executive order. It provided that employees could form and join unions, meet and confer over hours of work and working conditions, but not wages, and through their unions enter into binding contracts. However, under the law, federal workers were barred from striking, and could have a contract imposed on them if contract negotiations reached an impasse.
Governor Jerry Brown. Passed into law were the State Employment Relations Act (“SERA”), the Education Employment Relations Act (“EERA”), and the Higher Education Employment Relations Act (“HEERA”). While most states have a single public sector bargaining law, California has four!
California is one of the few states in which public employees, with the exception of public safety employees, can go out on strike.
- Step One: Unit Determination
- certain administrative rules for determining whose in and whose out have been established by the NLRB, the FLRA, and PERBs.
- Community of Interest, Bargaining History, Unit Size, Efficiency of Operations, Exclusion of Confidential Employees.
- Step Two: Elections
- –Any union can seek to be the exclusive bargaining agent for the bargaining unit.
- –Unions must show significant interest among employees to compete in an election (10%)
- –Once a significant number of employees show interest in being represented (over 30%), an election must be held.
- –FLRA/PERB conduct the election.If more than 50% of the employees vote for a particular representative (union), that union is certified as the official bargaining agent for the bargaining unit
- Step Three: Contract Negotiations
- Scope of Bargaining
- Mandatory Issues – matters that must be negotiated (e.g. wage/hours/ working conditions).
- Permissive Issues – matters that may be negotiated (e.g. union security, position classifications).
- Prohibited Issues – matters that may not be negotiated (e.g. union membership issues, management budget decisions).
- Impasse Resolution ProcessesMediation
- Fact Finding
- Interest Arbitration
- Imposition of a Contract by Management
- Step Four: Contract Administration
- Grievances arise where there are disagreements over the meaning of contract terms or where one party feels the other party has violated contract terms.Grievance processes usually provide for a three step review:
- Immediate Supervisor; Manager/Director; Agency Head.
- If grievances are not resolved at one of these levels of review, disputes may be “arbitrated.”Disputes over interpretation of the contract as applied to actual factual situations are resolved through the “rights arbitration” process.
Who is responsible
: Could be centralized (main HR dept) or decentralized (individual departments as needed)
The primary goal of any recruitment
effort is to obtain the maximum number of minimally qualified candidates possible for a position. This means designing a recruitment process that will lure the highest number of potential candidates for every position. Sorting through those candidates is not the purpose of recruitment, but it is that of Selection
must be timely, yet it also must be open (competitive) and fair (providing all potential applicants with an equal opportunity to participate). Qualities to be considered are merit in the form of knowledge, skills and abilities, diversity, individual motivation, and organizational loyalty.
there are three phases or steps. These are Planning and Approval of the positions targeted for recruitment, Development of the Job/Position Announcement, and Selection of the most appropriate Recruitment Strategies. Incorporating diversity
requirements into our recruitment strategies means we will be striving for applicants from a variety of backgrounds. With affirmative action
policies, merit is still important, it is balanced by the need to have sufficient applicants from those groups that are underrepresented in the workforce. Also, recruitment strategies under affirmative action must specifically target these populations to ensure that enough qualified applicants are aware of potential job opportunities, and that these potential applicants actually apply.
The role of selection
is to find the best-qualified candidate among many for the position we are trying to fill. Must discriminate among all applicants using the right tools, “job-related” reasons that allow us to discriminate effectively, accurately, and lawfully.
by: electoral popularity (choosing people by democratic election); Social Class (choosing people based upon their elite social status – although not used in the U.S., it was a strong factor considered by both the Federalists and the Republicans in the first 40 years of our history); Patronage (choosing people based on party affiliation); Merit (choosing people based on their technical competence); Seniority (choosing people based on their length of satisfactory service); and Representativeness ( choosing people based of the diversity of their ethnic, cultural, and social backgrounds).
Civil Rights Act of 1964 prohibits using a candidate’s race, gender, ethnicity, or religion as a discriminating factor. The Age Discrimination in Employment Act of 1968 prohibits using a candidate’s age, if they are over 40 years of age, as a discriminating factor. The Americans with Disabilities Act of 1990, prohibits us from using a candidate’s physical or mental disability as a discriminating factor, unless that disability makes them unable to perform an essential function of the job for which they are being considered.
Griggs v. Duke Power Co. Griggs, who was an African American, and otherwise qualified to work as a electrical lineman, applied for a lineman’s job with Duke but was denied employment. When Griggs asked why he did not get the job, Duke told him it was because he lacked a high school diploma and he failed to achieve a certain score on a standard English test. Griggs sued Duke under the CRA, arguing that he didn’t get the job because he was African American, and that Duke’s reasons were a smoke screen for underlying racial animus. The Supreme Court ultimately sided with Griggs, although there was no direct evidence that Duke was discriminating, after all the selection criteria on, their face were neutral,, the Court could see that consistently applying them would have a discriminatory impact on African Americans in North Caroline, who had substantially lower high school graduation rates and test scores on English exams. The Court held that in cases where selection criteria had these impacts, the employer had the burden to show that the criteria were clearly job-related and predictive of subsequent job performance, before they could be utilized. Thus after Griggs, Employers were required to demonstrate that selection criteria were both reasonably related to the job being filled, and that the criteria were “a reasonable measure of job performance”, regardless of the absence of actual intent to unlawfully discriminate.
two potential types of discrimination we need to be on the lookout for, disparate treatment and disparate impact. Disparate Treatment arises where the employer overtly discriminates against a protected group based on the group’s characteristics.
unless the employer can show that the intentional discrimination is necessary given the nature of the position (i.e. job-related) then it is called a Bona Fide Occupational Qualification (“BFOQ)
Equal Employment Opportunity Commission (EEOC) Uniformed Guidelines: an employer has three ways of demonstrating that the selection criteria and associated selection tools (tests) are valid, reliable and reasonably job related.
Content-related validity methods
:validates that the exam measures factors that are directly related to the duties and responsibilities of the position. In order to measure these factors, the job must be analyzed to determine its duties, the particular conditions that make work easy or difficult, realistic performance standards, the competencies required to perform these tasks up to these standards under these conditions, and the minimum qualifications required to ensure that an applicant would have these competencies. Ultimately, this method ensures the link to productivity, affirmative action and job analysis
criterion-related validity methods
: method requires that a test score be significantly correlated with job performance elements. A test will pass this validation if those who do well on the pre employment test does well on the job. In other words the test proves to be a good predictor of performance on the job and this can be achieved by comparing their work on the job with their exam scores or by giving the exam to those already in these positions.
construct-related validity methods
: validates that the test measures and identifies psychological traits and aptitudes that relate to successful job performance. This method is useful for managerial decision-making positions whose precise job content complex and involves elusive qualities, such as ability and flexibility.
Initial selection tests
- Any method by which we evaluate a candidate for employment is technically a “test.”
- 1) Assembled Tests are any tests where the employer actually controls the type of information received from the candidate to be evaluated. Assembled tests is where employers control the questions regarding the information being sought and they also control the content of the answers to be given. i.e. “list all previous employers within the last ten years with dates of employment and the reason for leaving” – Other examples of assembled tests include: all paper tests, work-related simulations, all certification requirements; and most Interviews.
- 2) Unassembled Tests are tests where employers lack control over the information being submitted by the candidate to be evaluated: For example, an employer has no idea what information a candidate my include in his resume, nor what others will comment on in letters of recommendation; similarly, employers will conduct reference checks but what information they will learn is anyone’s guess.
include:1) Screening candidate employment applications 2) Screening candidate resumes 3) Reviewing of letters of recommendation 4) Verifying candidate licensing or certification requirements
of testing we are using tests we hope will establish which candidates are well-qualified for the position we are trying to fill. General Aptitude Tests that measure a candidate’s knowledge, abilities and individual characteristics. Performance Tests that directly assess the level of the candidate’s necessary skills required for a particular job.
of testing we are using tests we hope will establish which candidates are the best qualified for a position. Job Simulations, Personal Interviews, Post-Offer Background Checks and Verifications.
used to confirm the appropriateness of a candidate’s selection. Example: probationary period.