Abstract
Long before employment testing became a matter of concern to civil rights law and lawyers, psychologists and social scientists knew that certain kinds of tests disproportionately screened out minorities and women. The standard texts on psychological testing have recognized for many years that as groups, blacks, Hispanics, and other minorities generally do not perform as well as Anglos on standardized tests and other selection criteria that emphasize verbal skills and mastery of the dominant culture.2 They have also recognized that women, as a group, generally do not perform as well as men on tests that emphasize certain mechanical and physical skills.3
The author presented this paper in December 1986, on behalf of the Lawyers’ Committee for Civil Rights Under Law and the NAACP Legal Defense and Educational Fund, Inc., to the Planning Conference for the National Commission on Testing and Public Policy. Subsequent developments in the law are noted at the conclusion of the paper. The author wishes to acknowledge the valuable advice and assistance of Richard T. Seymour of the Lawyers’ Committee and Barry L. Goldstein of the NAACP Legal Defense Fund.
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References
See A. Anastasi, Psychological Testing 343–45 (5th ed. 1982);
L. Cronbach, Essentials of Psychological Testing 383 (4th ed. 1984).
Id.
See, for example, Haney, “Employment Tests and Employment Discrimination: A Dissenting Psychological Opinion,” 5 Indus. Rel. L.J. 1, 26–27 and n.131 (1982);
Hunter and Schmidt, “Ability Tests: Economic Benefits Versus the Issue of Fairness,” 21 Indus. Rel. 293, 294 (1982);
Lerner, “Employment Discrimination: Adverse Impact, Validity, and Equality,” 1979 Sup. Ct. Rev. 17, 41–42.
Committee on Ability Testing, National Academy of Sciences/National Research Council, Ability Testing: Uses, Consequences, and Controversies 143, 146 (1982) (“NAS/NRC Report on Ability Testing”). Cf. Brunet v. City of Columbus, 41 E.P.D. para. 36,498 (S.D. Ohio 1986) (physical test and mechanical reasoning test administered to firefighter applicants had an adverse impact on women); Burney v. City of Pawtucket, 559 F. Supp. 1089 (D. R.I. 1983) (physical agility requirements and police academy physical training program had an adverse impact on female police officer applicants); Berkman v. City of New York, 536 F. Supp. 177 (E.D. N.Y. 1982), aff’d, 705 F.2d 584 (2d Or. 1983) (physical test administered to firefighter applicants had an adverse impact on women).
See Cooper and Sobol, “Seniority and Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion,” 82 Harv. L. Rev. 1598, 1638–41 (1969); Note, “Legal Implications of the Use of Standardized Ability Tests in Employment and Education,” 68 Colum. L. Rev. 691, 692–95 (1968).
For other discussions of the development of legal principles governing employment testing under Title VII, see Gold, “Griggs’ Folly: An Essay on the Theory, Problems, and Origin of the Adverse Impact Definition of Employment Discrimination and a Recommendation for Reform,” 7Indus. Rel. L.J. 429 (1985);
Haney, “Employment Tests and Employment Discrimination: A Dissenting Psychological Opinion,” 5 Indus. Rel. L.J. 1 (1982);
Booth and Mackay, “Legal Constraints on Employment Testing,” 29 Emory L.J. 121 (1980); Note, “The Uniform Guidelines on Employee Selection Procedures: Compromises and Controversies,” 28 Cath. U. L. Rev. 605 (1979).
See also B. Schlei and P. Grossman, Employment Discrimination Law 80–205 (1983).
See H.R. Rep. No. 570,88th Cong., 1st Sess. (1963).
See Vaas, “Title VII: Legislative History,” 7 B.C. Indus, and Com. L. Rev. 431, 433 (1966).
The language prohibiting “discrimination” was amended on the House floor by the addition of “sex” as a protected class. 110 Cong. Rec. 2577–84, 2718, 2720–21 (1964). See Vaas, “Title VII: Legislative History,” 7 B.C. Indus, and Com. L. Rev. 431, 439–42 (1966). Section 703(a) was later amended by the Equal Employment Opportunity Act of 1972, Pub. L. No. 92–261, expressly to prohibit discrimination against “applicants for employment” as well as discrimination against “employees.” See H.R. Rep. No. 92–238, 92d Cong., 1st Sess. 30 (1971); S. Rep. No. 92–415, 92d Cong., 1st Sess. 43 (1971). Congress regarded this amendment as “declaratory of existing law.” Id. at 43. See also Subcommittee on Labor, House Committee on Labor and Public Welfare, Legislative History of the Equal Employment Opportunity Act of 1972 1849 (1972) (section-by-section analysis of H.R. 1746 as reported by the Conference Committee citing, inter alia, Phillips v. Martin-Marietta Corp., 400 U.S. 542 [19711). The language of §703(a) otherwise remains the same today as when it was first enacted in 1964.
See H.R. Rep. No. 914, 88th Cong., 1st Sess. 10 (1963).
See 110 Cong. Rec. 2804 (1964).
110 Cong. Rec. 13492–505,13274 (1964). See Vaas, supra note 14, at 449.
See, for example, Griggs v. Duke Power Co., 292 F. Supp. 243, 250 (M.D. N.C. 1968), aff’d in part and rev’d in part, 420 F.2d 1225 (4th Or. 1970), rev’d, 401 U.S. 424 (1971).
See, for example, M. Sovern, Legal Restraints on Racial Discrimination in Employment 73 (1966); Rachlin, ‘Title VII: Limitations and Qualifications,’ 7 B.C. Indus. and Com. L. Rev. 473, 486–90 (1966).
See United States v. H.K. Porter Co., 296 F. Supp. 40, 78 (N.D. Ala. 1968); Dobbins v. Electrical Workers Local 212, 292 F. Supp. 413, 433–34, 439 (S.D. Ohio 1968).
See, for example, Cooper and Sobol, “Seniority and Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion,” 82 Harv. L. Rev. 1598, 1649–54 (1969); Note, “Legal Implications of the Use of Standardized Ability Tests in Employment and Education,” 68 Colum. L. Rev. 691, 706–11 (1968).
See supra note 21.
See Gold, “Griggs’ Folly: An Essay on the Theory, Problems, and Origin of the Adverse Impact Definition of Employment Discrimination and a Recommendation for Reform,” 7 Indus. Rel. L.J. 429, 489–578 (1985).
EEOC Guidelines on Employment Testing Procedures, reprinted in CCH Empl. Prac. Guide para. 16,904 (1967).
Id.
Robertson, A Staff Analysis of History of EEOC Guidelines on Employee Selection Procedures 15 (1976) (unpublished report submitted to the General Accounting Office by Peter C. Robertson, Director, Federal Liaison, Equal Employment Opportunity Commission, August 1976) (on file with the author). This report further states that: Very early in its operations EEOC discovered that employers were utilizing discriminatory employment testing which had proved to be a major barrier to minority advancement. Written findings of probable cause that these tests were discriminatory formed the basis of early conciliation attempts, but employers who disagreed with EEOC’s perception of discrimination refused to conciliate. An ad hoc approach left the impression that individual conciliators were taking a personal position that… the tests were discriminatory and had to be eliminated. This was replaced with a formal institutionalized position in which the policymakers defined agency policy through Commission Guidelines….When EEOC began to notice a pattern of test useage [sic] which was excluding minorities without serving any job related purpose or business need[J it consulted with experts in the design and study of mechanisms to identify employee capability. Specifically, EEOC asked a panel of psychologists to advise it with respect to issues relating to the development, introduction and administration of test of aptitude and/or ability in industrial settings as related to problems of employment discrimination…. Id. at 14–15 (footnotes omitted).
See also Blumrosen, “Strangers in Paradise: Griggs v. Duke Power Co. and the Concept of Employment Discrimination,” 71 Mich. L. Rev. 59, 59–60 (1972) (EEOC officials “knew that many companies had introduced tests in the 1950s and early 1960s when they could no longer legally restrict opportunities of blacks and other minority workers and that the tests had proved to be major barriers to minority advancement”).
Cooper and Sobol, supra note 22, at 1654.
Id. But cf. Cooper and Sobol supra note 22 at 1664–65.
Id.
American Psychological Association, American Educational Research Association, and National Council on Measurement in Education, Standards for Educational and Psychological Tests and Manuals (1966).
1966 Guidelines. In 1968 and 1969, respectively, the Department of Labor’s Office of Federal Contract Compliance, see 33 Fed. Reg. 11392 (1968), and the Civil Service Commission, see FPB Supp. 335.1 (1969), issued their own testing guidelines.
Blumrosen, supra note 27, at 60 n.5.
EEOC Guidelines on Employee Selection Procedures, 35 Fed. Reg. 12333 (1970), codified at 29 C.F.R. §§1607.1 et seq. (1970).
Id., §§1607.4–1607.8. The 1970 Guidelines continued to rely on the APA Standards. Id., §1607.5.
Id., §1607.1 (b)
B. Schlei and P. Grossman, supra note 9, at 5.
See B. Woodward and S. Armstrong, The Brethren 122–23 (1979).
See Gold, supra note 23, at 489–578; Lyons, “An Agency with a Mind of Its Own: The EEOC’s Guidelines on Employment Testing,” 17 New Perspectives 20 (1985).
See supra notes 18–23.
Pub. L. No. 92–261, 86 Stat. 103 (1972).
H.R. Rep. No. 92–238, 92d Cong., 1st Sess. 8 (1971) (footnote and citations omitted).
See S. Rep. No. 92–415,92d Cong., 1st Sess. 5 (1971).
Id. at 14–15.
422 U.S. 405 (1975).
Id. at 425, quoting Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971).
Id.
Id., quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973).
Id. at 427.
See International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977); Dothard v. Rawlinson, 433 U.S. 321 (1977); New York City Transit Authority v. Beazer, 440 U.S. 568 (1979); Connecticut v. Teal, 457 U.S. 440 (1982).
See supra notes 32 and 42.
41 Fed. Reg. 51737 (1976).
41 Fed. Reg. 51984 (1976).
See Booth and Mackay, supra note 9, at 124–40; Note, The Uniform Guidelines on Employee Selection Procedures: Compromises and Controversies, supra note 9, at 607–10.
See “Notice of Proposed Rulemaking,” 42 Fed. Reg. 65542 (1977); “Notice of Issues of Particular Interest for Public Hearing and Meeting,” 43 Fed. Reg. 11812 (1978); “Uniform Guidelines, Supplementary Information: Analysis of Comments,” 43 Fed. Reg. 38292–93 (1978).
See “Uniform Guidelines, Supplementary Information: Analysis of Comments,” 43 Fed. Reg. 38292–93 (1978).
See Bushey v. New York State Civil Service Commission, 733 F.2d 220, 224–28 (2d Or. 1984), cert. denied, 105 S. Ct. 803 (1985).
See B. Schlei and P. Grossman, supra note 9, at 98–100 and cases cited therein; Lerner, supra note 4, at 21–39; Booth and Mackay, supra note 8, at 142–51.
See B. Schlei and P. Grossman, supra note 9, at 162–205 and cases cited therein.
See Furnco Construction Corp. v. Waters, 438 U.S. 567, 575–76 and nn.7–8 (1978) (McDonnell Douglas standard, rather than Griggs-Albemarle standard, applied where case “did not involve employment tests… or particularized requirements such as… height and weight specifications…, and it was not a ‘pattern or practice’ case”).
668 F.2d 795 (5th Or. 1982).
Id. at 800.
Id. See also Antonio v. Wards Cove Packing Co., 768 F.2d 1120, 1131–33 and n.8 (9th Cir. 1985); Spaulding v. University of Washington, 740 F.2d 686 (9th Cir.), cert. denied, 105 S. Ct. 511 (1984); Vuyanich v. Republic National Bank, 723 F.2d 1195 (5th Cir. 1984); Talley v. United States Postal Service, 720 F.2d 505 (8th Cir. 1983); EEOC v. Federal Reserve Bank, 698 F.2d 633 (4th Cir. 1983); Mortensen v. Callaway, 672 F.2d 822 (10th Cir. 1982). See generally B. Schlei and P. Grossman, supra note 9, at 1287–90. Cf. Bartholet, “Application of Title VII to Jobs in High Places,” 95 Harv. L. Rev. 947, 959–78 (1982).
Bartholet, supra note 109, at 1024. See United Steelworkers v. Weber, 443 U.S. 193, 202 (1979).
Firefighters Institute for Racial Equality v. City of St. Louis, Civil Action Nos. 74–30(c)(3) and 74–200(c)(3) (E.D. Mo.). Filed in 1974, the case went to the Eighth Circuit three times. The last decision on appeal is reported at 616 F.2d 350 (8th Cir. 1980), cert. denied, 452 U.S. 938 (1981).
1982 GAO Report, supra note 102, at 8–9, quoting Albemarle, 422 U.S. at 425 (citations omitted).
Furnco Construction Corp. v. Waters, 438 U.S. 567, 578 (1978).
See, for example, Gillespie v. State of Wisconsin, 771 F.2d 1035, 1045–46 (7th Cir. 1985), cert. denied, 106 S. Ct. 854 (1986) (plaintiff in litigation did not satisfy burden of demonstrating equally valid alternative selection procedures with less adverse impact); Clady v. County of Los Angeles, 770 F.2d 1421, 1432–33 (9th Cir. 1985) (same).
Ad Hoc Group Analysis, supra note 102, at 41.
See Bushey v. New York State Civil Service Commission, 733 F.2d 220, 224–28 (2d Cir. 1984),cert. denied, 105 S. Ct. 803 (1985); Kirkland v. New York State Department of Correctional Services, 628 F.2d 796, 798–801 (2d Cir. 1980),cert. denied, 450 U.S. 980 (1981).
See Easley v. Anheuser-Busch, Inc., 572 F. Supp. 402, 410 (E.D. Mo. 1983); Dickerson v. United States Steel Corp., 472 F. Supp. 1304, 1352 (E.D. Pa. 1978).
426 U.S. 229 (1976).
434 U.S. 1026 (1978).
United States v. South Carolina, 445 F. Supp. 1094, 1113 (D. S.C 1977), aff’d sub nom. National Education Association v. South Carolina, 434 U.S. 1026 (1978).
Rivera v. City of Wichita Falls, 665 F.2d 531, 538 n.9 (5th Qr. 1982). See also Corley v. City of Jacksonville, 506 F. Supp. 528, 532–36 (M.D. Fla. 1981).
Blake v. City of Los Angeles, 595 F.2d 1367, 1382 n.17 (9th Cir. 1979), cert. denied, 446 U.S. 928 (1980).
Guardians Association v. Civil Service Commission of the City of New York, 633 F. 2d 232, 244–45 (2d Or. 1980), cert. denied, 103 S. Ct. 3568 (1983).
See Earless v. Duck, 619 F.2d 611, 616–17 (6th Cir.), cert. denied, 449 U.S. 872 (1980); Ensley Branch, NAACP v. Seibels, 616 F.2d 812, 822 n.25 (5th Cir.), cert. denied, 449 U.S. 1061 (1980); Brunei v. City of Columbus, 41 E.P.D. para. 36,498 (S.D. Ohio 1986); Dickerson v. United States Steel Corp., 472 F. Supp. 1304, 1347–49 (E.D. Pa. 1978).
See 1985 APA Standards, supra note 33, at 60–62.
See 1980 “Division 14 Principles,” supra note 34, at 7,12.
Systematic employment testing is thought to have originated in China around 2200 B.C., when the emperor began examining his officials every third year to determine their fitness to continue in office. The elaborate civil service testing system that evolved in imperial China was adapted by France in the late eighteenth century and by Britain in the nineteenth century (see also Carolyn Webber, this volume). The United States picked up the movement from Britain in the late nineteenth century, and began to develop and use civil service tests in the 1880s. P. DuBois, A History of Psychological Testing 3–6 (1970). Professional psychologists did not become involved in employment testing until early in the twentieth century. Id. at 82.
See Haney, supra note 4, at 3–13. See also S. Gould, The Mismeasure of Man 20–29 (1981).
But see A. Jensen, Bias in Mental Testing (1979).
Haney, supra note 4, at 50.
See Haney, supra note 4, at 50. The principal trait the early testers were trying to measure was “intelligence.” They turned to psychological tests for this purpose after they gave up on craniometry—the science of measuring heads. See S. Gould, supra note 147, at 30–107.
Haney, supra note 4, at 50.
See id. at 49 and nn.228–29.
See id. at 51–55.
L. Cronbach, supra note 2, at 400.
R. Nisbett and L. Ross, Human Inference: Strategies and Shortcomings of Social Judgment 31 (1980). Nisbett and Ross define “fundamental attribution error” as the “assumption that behavior is caused primarily by the enduring and consistent dispositions of the actor, as opposed to the particular characteristics of the situation to which the actor responds.” Id. They maintain that this inferential error is so “thoroughly woven into the fabric of our culture” that “children growing up in our culture come to hold an increasingly dispositional view of the causes of behavior.” Id.
Supra notes 25 and 36.
1966 EEOC Guidelines, supra note 25 (emphasis added).
See supra notes 43–78.
Albemarle Paper Co. v. Moody, 422 U.S. 405, 432 (1975).
See supra notes 84–98.
Pearlman, Schmidt, and Hunter, “Validity Generalization Results for Tests Used To Predict Job Proficiency and Training Success in Clerical Occupations,” 65 J. App. Psych. 373, 374–76, 399–400 (1980).
See also Schmidt and Hunter, “Employment Testing: Old Theories and New Research Findings,” 36 Am. Psych. 1128 (1981) (brief review of recent findings);
Schmidt, Hunter, and Pearlman, “Task Differences and Validity of Aptitude Tests in Selection: A Red Herring,” 61 J. App. Psych. 166 (1981);
Schmidt, Hunter, Pearlman, and Shane, “Further Tests of the Schmidt-Hunter Bayesian Validity Generalization Procedure,” 32 Pers. Psych. 257 (1979);
Schmidt and Hunter, “Development of a General Solution to the Problem of Validity Generalization,” 62 J. App. Psych. 529 (1977).
Hunter and Schmidt, supra note 4, at 295–98.
See Friend v. Leidinger, 588 F.2d 61, 65 (4th Or. 1978); Pegues v. Mississippi State Employment Service, 488 F. Supp. 239, 254 and n.l (M.D. Miss. 1980), aff’d on other grounds, 699 F.2d 760 (5th Cir.), cert. denied, 104 S. Ct. 482 (1983).
A. Anastasi, supra note 2, at 143–44. See also id. at 437–38.
L. Cronbach, supra note 2, at 401. See also James, Demaree, and Mulaik, “A Note on Validity Generalization Procedures,” 71 J. App. Psych. 440 (1986) (a critical review of the Schmidt-Hunter studies).
1980 “Division 14 Principles,” supra note 34, at 15–16.
1985 APA Standards, supra note 33, at 12 and 59–62.
1980 “Division 14 Principles,” supra note 32, at 15–16.
1985 APA Standards, supra note 31, at 59.
NAS/NRC Report on Ability Testing, supra note 5, at 148.
See supra Part III(B).
NAS/NRC Report on Ability Testing, supra note 5, at 148.
See EEAC Analysis, supra note 102, at 47–48.
B. Schlei and P. Grossman, supra note 9, at 155–56 (footnotes omitted).
630 F.2d 79 (2d Cir. 1980), cert. denied, 452 U.S. 940 (1981).
630 F.2d at 103. See also Berkman v. City of New York, 536 F. Supp. 177, 211 (E.D. N.Y. 1982), aff’d, 705 F.2d 584 (2d Or. 1983) (evidence held insufficient to support the “extraordinary pretense at precision” reflected in rank ordering).
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Patterson, P.O. (1989). Employment Testing and Title VII of the Civil Rights Act of 1964. In: Gifford, B.R. (eds) Test Policy and the Politics of Opportunity Allocation: The Workplace and the Law. Evaluation in Education and Human Services, vol 22. Springer, Dordrecht. https://doi.org/10.1007/978-94-009-2502-1_4
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