Monday, December 19, 2011

Diplomas and Job Selection Standards

One of the things that has always puzzled me is why the various federal discrimination agencies (not to mention plaintiffs' attorneys) have not attacked employers on the high school/college diploma requirement for hiring or promotion. It isn't like there hasn't been some hint that this might be a lucrative area for a disparate impact type claim-the Griggs case from the early 1970s was a clear warning by the Supreme Court that generic education standards for employment might not hold up under any kind of systematic analysis.

Just think for a moment about the difficulty of justifying the need for a bachelor's degree with respect to many jobs. Especially in the liberal arts area. What exactly does a bachelor of arts degree mean with respect to a job such as marketing, insurance underwriting, medical technology, food service or financial management? In truth, aren't many of the skills people need for these positions learned on the job, as they move up through the ranks of blue and white collar America?

There may be some change on the horizon here. The EEOC recently issued what it refers to as an "informal discussion letter" in response to a query about the application of the ADA in situations where learning disabled students have difficulties on state required tests, that result in their being denied a high school diploma. Expanding on the question before it, the Commission opined that a qualification standard, test or other selection criteria such as a high school diploma requirement that effectively screen out an individual or class of individuals with a disability must be "job-related for the position in question and consistent with business necessity."

Those are ominous words inside the quotation marks, ladies and gentlemen. Because if you can't articulate why, exactly, a person needs a high school diploma to perform a specific job, or if your workforce contains examples of people without high school diplomas performing the work in question, or if it's possible to train people up to the necessary level of performance without them having a high school diploma, then you may be in trouble under the ADA with respect to people with learning disabilities. Moreover, it's a simple step from challenging high school diploma requirements to challenging college graduation requirements along the same lines. And there's no disputing the fact that a college graduation requirement has a significant disparate impact among certain populations, including minorities, and the disabled.

And now to make this issue really convoluted, a recent law review article from William and Mary Law school cites studies that convincingly demonstrate that the best predictors for job performance across the board are so-called "g" loaded standards that are heavily indicative of cognitive ability. Graduation from high school and from college are classic g loaded standards, and an employer applying these types of tests will, according to the research, end up with a significantly less diverse and more effective workforce.

Whether this type of broad-spectrum social science analysis would have any effect on a judge or jury in an actual disparate impact case, where the assumptions are that an impartial job selection process will result in workers from each protected class being hired or promoted in rough proportion to their numbers in the population (which the article categorically states is an incorrect assumption) remains to be seen. What is clear is that most employers would be hard-pressed to point to specific elements of any job in the workplace that are grounded in a high school or college diploma, even though these cognitive standards work well.

For now the floodgates for this particular type of litigation are still secure. But for how long?

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