employment regulation in the workplace: basic compliance for managers by robinson, franklin, and...

Employment Regulation in the Employment Regulation in the Workplace: Basic Compliance Workplace: Basic Compliance

for Managersfor Managersby by

Robinson, Franklin, and WaylandRobinson, Franklin, and Wayland

Chapter 4Chapter 4

Unintentional Unintentional Discrimination: Disparate Discrimination: Disparate

Impact Impact

Spring 2009Spring 2009

Answers to WonderlichAnswers to Wonderlich

Question Answer Question Answer 1 3 15 0.31 2 3 16 e 3 2 17 4 4 Yes 18 4 5 4 19 3 6 2 20 F 7 4 21 1 8 1 22 3,5 9 5 23 31 10 40 24 2 11 3 25 1 12 $.90 26 1500 13 4 27 2 14 3 28 1

Answers to WonderlichAnswers to Wonderlich

Question Answer Question Answer 29 3 41 1 30 1 42 1 31 1,5 43 6 32 $31.85 44 2 33 1 45 15 34 3 46 $8.40 35 20 47 1 36 .1 48 25% 37 6 49 3,7 38 2 50 $320 39 4 40 2,3,4

Griggs v. Duke Power CompanyGriggs v. Duke Power Company

Griggs v. Duke Power Company Griggs v. Duke Power Company 401 U.S. 424 (1971)401 U.S. 424 (1971)

Five operating departments:Five operating departments: (1) Labor(1) Labor (2) Coal Handling(2) Coal Handling (3) Operations(3) Operations (4) Maintenance, and (4) Maintenance, and (5) Laboratory and Testing(5) Laboratory and Testing


Facially Neutral Selection Facially Neutral Selection CriteriaCriteria:: High school diploma or a GEDHigh school diploma or a GED. . Two aptitude tests.Two aptitude tests.

Wonderlich Personnel Test. Wonderlich Personnel Test. Bennett Mechanical Bennett Mechanical Comprehension Tests.Comprehension Tests.


High school diploma or a High school diploma or a GEDGED. . 1960 North Carolina census, 34% of 1960 North Carolina census, 34% of

white males had completed high school, white males had completed high school, compared to only 12% of black malescompared to only 12% of black males

Two aptitude testsTwo aptitude tests.. White candidates, 58% would pass.White candidates, 58% would pass. Black candidates, 6% would pass.Black candidates, 6% would pass.


Even though the Even though the samesame standards standards were administered to were administered to allall applicants, applicants, the standards excluded a the standards excluded a disproportionate number of blacks disproportionate number of blacks from favorable consideration.from favorable consideration.

The Major ProblemThe Major Problem:: The The requirements were not necessary to requirements were not necessary to perform two of the job categories: perform two of the job categories: the coal handling and maintenance the coal handling and maintenance jobs.jobs.


Employees who had not completed Employees who had not completed high school or had not taken the test high school or had not taken the test (employees who had been hired (employees who had been hired before the new standards were before the new standards were implemented in 1965) had performed implemented in 1965) had performed satisfactorily in the jobs which now satisfactorily in the jobs which now required GED and passing test required GED and passing test scores.scores.

Disparate ImpactDisparate Impact

Disparate ImpactDisparate Impact (unintentional discrimination)(unintentional discrimination) A facially neutral selection criterion has A facially neutral selection criterion has

the effect of disqualifying a the effect of disqualifying a disproportionate number of protected disproportionate number of protected class members.class members.

This is usually demonstrated by a This is usually demonstrated by a manifest statistical imbalance.manifest statistical imbalance.


Prima Facie Case:Prima Facie Case:(1)(1) Identify a specific employment Identify a specific employment

practice. practice.

(2)(2) Offer reliable statistical evidence the Offer reliable statistical evidence the the practice causes the exclusion of the practice causes the exclusion of sufficiently substantial number of sufficiently substantial number of applicants because of their applicants because of their membership in a protected group.membership in a protected group.

((Wards Cove Packing Co. v. AtonioWards Cove Packing Co. v. Atonio, 490 U.S. , 490 U.S. 642, 657, (1989))642, 657, (1989))

Employment Practices with Employment Practices with Potential Disparate ImpactPotential Disparate Impact

Height RequirementsHeight Requirements Weight RequirementsWeight Requirements Education RequirementsEducation Requirements Physical Agility RequirementsPhysical Agility Requirements Cognitive Ability TestsCognitive Ability Tests Language RequirementsLanguage Requirements Arrest RecordsArrest Records Conviction RecordConviction Record Marital StatusMarital Status Credit ReportsCredit Reports

Methods for Establishing Methods for Establishing Statistical ImbalancesStatistical Imbalances

Two or three standard deviations.Two or three standard deviations. Standard deviations are a measurement Standard deviations are a measurement

of the probability that a result is a of the probability that a result is a random deviation from the predicted random deviation from the predicted result.result.

A 95% confidence interval.A 95% confidence interval. Four-Fifths RuleFour-Fifths Rule..

A 95% Confidence IntervalA 95% Confidence Interval

A confidence interval gives an A confidence interval gives an estimated range of values which is estimated range of values which is likely to include an unknown likely to include an unknown population parameter, the estimated population parameter, the estimated range being calculated from a given range being calculated from a given set of sample data. set of sample data.

Four-Fifths RuleFour-Fifths Rule

The EEOC & OFCCP have adopted a rule The EEOC & OFCCP have adopted a rule of thumb under which they will of thumb under which they will generally consider a selection rate for generally consider a selection rate for any race, sex, or ethnic group which is any race, sex, or ethnic group which is less than four-fifths (4/5ths) or eighty less than four-fifths (4/5ths) or eighty percent (80%) of the selection rate for percent (80%) of the selection rate for the group with the highest selection the group with the highest selection rate as a substantially different rate of rate as a substantially different rate of selection. selection.

(Source: 44 Fed. Reg. 11,996).(Source: 44 Fed. Reg. 11,996).


Selection rateSelection rate Selection rateSelection rate of the protectedof the protected < < .8.8 of the groupof the group class class with the highestwith the highest raterate

Four-Fifths RuleFour-Fifths Rule For example, if the hiring rate for Whites For example, if the hiring rate for Whites

[other than Hispanic] is 60%, for American [other than Hispanic] is 60%, for American Indians 45%, for Hispanics 48%, and for Indians 45%, for Hispanics 48%, and for Blacks 51%, and Blacks 51%, and each of these groups each of these groups constitutes more than constitutes more than 2%2% of the labor of the labor force in the relevant labor areaforce in the relevant labor area, a , a comparison should be made of the comparison should be made of the selection rate for each group with that of selection rate for each group with that of the highest group (whites). the highest group (whites).

These comparisons show the following These comparisons show the following impact ratios:impact ratios: American Indians 45/60 or .75American Indians 45/60 or .75 Hispanics 48/60 or .80Hispanics 48/60 or .80 Blacks 51/60 or .85Blacks 51/60 or .85

Source: 44 Fed. Reg. 11,996 (Mar. 2, 1979).Source: 44 Fed. Reg. 11,996 (Mar. 2, 1979).

Four-Fifths RuleFour-Fifths Rule Should adverse impact determinations be made Should adverse impact determinations be made

for all groups regardless of their size?for all groups regardless of their size? Answer: No. Section 15A(2) calls for Answer: No. Section 15A(2) calls for annualannual

adverse impact determinations to be made for adverse impact determinations to be made for each group which constitutes either each group which constitutes either 2% or more 2% or more of the total labor force in the relevant labor of the total labor force in the relevant labor area, or 2% of more of the applicable area, or 2% of more of the applicable workforceworkforce..

For hiring, such determination should also be For hiring, such determination should also be made for groups which constitute more than 2% of made for groups which constitute more than 2% of the applicants; and for promotions, determinations the applicants; and for promotions, determinations should also be made for those groups which should also be made for those groups which constitute at least 2% of the user's workforce. constitute at least 2% of the user's workforce.

Note that there are record keeping obligations for Note that there are record keeping obligations for all groups, even those which are less than 2%. all groups, even those which are less than 2%.

Source: 44 Fed. Reg. 11,996 (Mar. 2, 1979).Source: 44 Fed. Reg. 11,996 (Mar. 2, 1979).


Griggs v. Duke Power Co. Of the 181 White applicants, taking the Wonderlich test, 105 pass. Of the 102 Black applicants , 6 passed.

6 105 102 181

.06 < .8 (.58)

.06 < .48

< .8

or .06/.58 = .103 which is less than .8

Test of Significance and Four-Test of Significance and Four-Fifths RuleFifths Rule

Q: Is it usually necessary to calculate the Q: Is it usually necessary to calculate the statistical significance of differences in statistical significance of differences in selection rates when investigating the selection rates when investigating the existence of adverse impact?existence of adverse impact?

A: A: NoNo.. Adverse impact is normally indicated Adverse impact is normally indicated when one selection rate is less than 80% of when one selection rate is less than 80% of the other. The federal enforcement the other. The federal enforcement agencies normally will use only the 80% agencies normally will use only the 80% (4/5ths) rule of thumb, except where large (4/5ths) rule of thumb, except where large numbers of selections are made.numbers of selections are made.

Source: Equal Employment Opportunity Commission, Source: Equal Employment Opportunity Commission, Uniform Uniform Employee Selection Guidelines Interpretation and Employee Selection Guidelines Interpretation and ClarificationClarification (Questions and Answers). (Questions and Answers).

Standard Deviation RuleStandard Deviation Rule

σx = (ρ) (1- ρ) nWhere:p = proportion of one groupN = the number selected

pn = expected value (representation)μx ± 2σx = the confidence interval


Sx =

Total PGApplicants

TotalApplicants

X

Total OtherApplicants

TotalApplicants

XTotal

Applicants Selected

Standard Deviation Rule


Sx = X X

Of the 181 White applicants, taking the Wonderlich test, 105 pass. Of the 102 Black applicants , 6 passed.

102

283

181

283111


Sx = X X

Of the 181 White applicants, taking the Wonderlich test, 105 pass. Of the 102 Black applicants , 6 passed.

102

283

181

283111

.36 X .64 X 111=

25.57=

= 5.057

Total applicants who passed

% of test takers who were black


Standard Deviation RuleStandard Deviation Rule If the black applicants (102) were selected at the same proportion that they were represented in the test-taking (a total of 283 applicants), we would expect 40 Blacks to have been hired.Blacks were 36% of those taking the test (102/283) from which 111 total applicants passed.Hence: 111 X .36 = 40 [expected representation]


At + 3 Sx we would expect the selection of blacks to fall within a range of 25 to 55. 40 + (5.057 X 3).

Selecting only 6 falls more than six Sx (6.72) from the expected representation. 4025 556

-3sx +3sx-6sx

Applicants with High School Applicants with High School Diplomas - RaceDiplomas - Race

Blacks Whites TotalApplied Passed Applied Passed

Applied Passed

Male 110 37 146 81 256 118

Female 48 18 36 32 84 50

Total 158 55 182 113 340 168(.348) (.621)

.348 < .8(.621).348 < .497

or .348/.621 = .56 which is less than .8

Yes, Disparate Impact

Applicants with High School Applicants with High School Diplomas - SexDiplomas - Sex


Applied Passed

Male 110 37 146 81 256 118

Female 48 18 36 32 84 50

Total 158 55 182 113 340 168

(.594)

(.461)

.594 < .8(.461) [Females have the highest rate].594 < .369

or .594/.461 = 1.29 which is greater than than .8 No Disparate Impact

Applicants Passing Dexterity Applicants Passing Dexterity TestTest


Applied Passed

Male 37 37 81 76 118 113

Female 18 16 32 28 50 44

Total 55 53 113 104 168 157

(.96) (.92)

No Disparate Impact

. 96 < .8 (. 92 )[note blacks had the highest passing rate]

.96 < .768or .96/.92 = 1.04 which is greater than .8

Hired-After 2Hired-After 2ndnd Test Test


Applied Passed

Male 37 37 76 44 113 81

Female 16 16 28 28 44 44

Total 53 53 104 72 157 125 Note: 100% of Blacks were passing both tests were hiredThis is compared to 69.2% of whites passing both.

(1.0) (.692)

Bottom Line StatisticsBottom Line Statistics

Blacks Whites TotalApplied Hired Applied Hired Applied

Hired

Male 110 37 146 44 256 81

Female 48 16 36 28 84 44

Total 158 53 182 72 340 125

(.335) (.396) .335 < .8(.396)

.335 < .316or .335/.396 = .846 which is greater than .8

Practice ProblemPractice Problem


Applied Passed

Male 110 47 146 71 256 118

Female 48 18 36 32 84 50

Total 158 65 182 103 340 168Analyze using both the Four-Fifths Rule and Three StandardDeviation Rule for Race and Gender


Employer’s RebuttalEmployer’s Rebuttal: The : The criterion creating the criterion creating the imbalance is a imbalance is a business business necessitynecessity (job-related) (job-related)..

Challenging StatisticsChallenging Statistics

Relevant labor marketRelevant labor market:: For statistical evidence to be probative, For statistical evidence to be probative,

the statistical pool or sample used must the statistical pool or sample used must logically be related to the employment logically be related to the employment decision at issue and the statistical decision at issue and the statistical method applied to the pool or sample method applied to the pool or sample must be meaningful and suitable under must be meaningful and suitable under the facts and circumstances of the case. the facts and circumstances of the case.

((Hazelwood School Dist. v. U.S.,Hazelwood School Dist. v. U.S., 433 U.S. 299, 308, 433 U.S. 299, 308, (1977))(1977))


Sample SizeSample Size: the sample size may : the sample size may be too small and thus the selection be too small and thus the selection or rejection of a single individual or rejection of a single individual would substantially affect would substantially affect proportional outcomes. proportional outcomes. (29 C.F.R. § 1607.3D)(29 C.F.R. § 1607.3D)


Sample SizeSample Size The general convention suggests The general convention suggests

that correlational studies require at that correlational studies require at least 30 subjects.least 30 subjects.

In statistical analysis, the larger the In statistical analysis, the larger the sample size, the greater the degree sample size, the greater the degree of precision. The smaller the size, of precision. The smaller the size, the greater the probability of random the greater the probability of random error.error.

Challenging StatisticsChallenging Statistics Countervailing StatisticsCountervailing Statistics::

Stock Analysis* (a measure of Stock Analysis* (a measure of representativeness):representativeness):

Employers may choose to show that their internal Employers may choose to show that their internal workforce has more protected class members than one workforce has more protected class members than one would expect in the relevant external labor market or:would expect in the relevant external labor market or:

Proportion of Protected Class inProportion of Protected Class in Proportion of ProtectedProportion of Protected

Employer’s Internal WorkforceEmployer’s Internal Workforce Class in the Relevant Class in the Relevant Labor Labor MarketMarket

* * The basis for utilization analysis in chapter 6The basis for utilization analysis in chapter 6

>

Challenging StatisticsChallenging Statistics Stock AnalysisStock Analysis

An employer has the following relevant An employer has the following relevant labor market for laborers: 116,000 labor market for laborers: 116,000 individuals of whom 13,950 are African-individuals of whom 13,950 are African-Americans, 10,000 are Hispanic, 2500 Americans, 10,000 are Hispanic, 2500 are of Asian ancestry and the are of Asian ancestry and the remainder are nonHispanicremainder are nonHispanic white white (89,580). (89,580).

Proportional estimates relevant labor Proportional estimates relevant labor market: 77.2% white, 12% Black, 8.6% market: 77.2% white, 12% Black, 8.6% Hispanic, and 2.2% Asian.Hispanic, and 2.2% Asian.


Employees holding positions classed as Employees holding positions classed as laborers in the employer’s workforce are laborers in the employer’s workforce are as follows: as follows:

5400 total current employees in the 5400 total current employees in the classification.classification.

950 are Black.950 are Black. 390 are Hispanic390 are Hispanic 65 are Asian65 are Asian 3995 are White3995 are White


Employer’s workforceEmployer’s workforce:: 5400 current employees.5400 current employees. .176 or 17.6% are Black..176 or 17.6% are Black. .072 or 7.2% are Hispanic.072 or 7.2% are Hispanic .012 or 1.2% are Asian.012 or 1.2% are Asian .74 or 74.0% are White.74 or 74.0% are White


Comparison of relevant labor market to Comparison of relevant labor market to employer’s workforce: employer’s workforce:

Black .176 < .12 Black .176 < .12 or .176/.12 = 1.467

Hispanic .072 < .086Hispanic .072 < .086 or .072/.086 = .837

Asian .012 < .022Asian .012 < .022 or .012/.022 = .545

White .74 < .772White .74 < .772 or .74/.772 = .959

employment regulation in the workplace: basic compliance for managers by robinson, franklin, and...

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