Complete a job analysis using the best current practices, as the basis for the construction of a legal selection process. Deploy your selection process, using information from the job analysis. Manage your selection process results. Ensure your process meets regulatory standards. Address legal department concerns.

1. CONDUCTING A
JOB ANALYSIS
B E S T P R A C T I C E S F O R R E S U LT S A N D
C O M P L I A N C E

2. RULES OF ENGAGEMENT FOR
WEBINAR
• Your phone will be muted
during the conference
• We request that you ask any
questions through the chat feature
• Questions will be addressed at
the end of the webinar
• Please complete the survey at
the end of the webinar

3. AGENDA
• Complete a job analysis using the best current practices, as the basis for the construction
of a legal selection process.
• Deploy your selection process, using information from the job analysis.
• Manage your selection process results.
• Ensure your process meets regulatory standards.
• Address legal department concerns.

4. JOB ANALYSIS
T H E S T U D Y O F T H E W O R K
R E Q U I R E M E N T S A N D A P P R O P R I AT E P AY
L E V E L S O F A P A R T I C U L A R J O B

5. JOB ANALYSIS - METHODS
– The development of a strong selection process starts with the understanding of the job
requirements through the following methods:
• Observation
• Work Sampling
• Employee Diary/ Log
• Interviewing
• Questionnaires
• Critical incident technique
• Functional Job Analysis (DOL standard practice)
http://www.whatishumanresource.com/job-analysis-
methods

6. INTERVIEWING
• What is the job being performed?
• What are the major duties of your job position? What exactly do you do?
• What physical locations do you work in?
• What are the education, experience, skill, and [where applicable] certification and licensing requirements?
• In what activities do you participate?
• What are the job’s responsibilities and duties?
• What are the basic accountabilities or performance standards that typify your work?
• What are your responsibilities?
• What are the environmental and working conditions involved?
• What are the job’s physical demands? The emotional and mental demands?
• What are the health and safety conditions?
• Are you exposed to any hazards or unusual working conditions?

7. Job Analysis Questionnaire
• Materials and equipment used
• Financial/budgeting input
• External and internal contacts
• Knowledge, skills, and abilities used
• Working conditions
• Duties and percentage of time spent on each
• Work coordination and supervisory responsibilities
• Physical activities and characteristics
• Decisions made and discretion exercised
• Records and reports prepared
• Training needed

8. FUNCTIONAL JOB ANALYSIS:
FOCUS ON DATA, PEOPLE, AND THINGS
1. goals of the organization,
2. what workers do to achieve those goals in their jobs
3. level and orientation of what workers do
4. performance standards
5. training content

9. WHICH ONE IS BEST?
No specific job analysis method has received the stamp of approval from the various
courts in all situations.
In dealing with issues that may end up in court, care must be taken by HR specialists and
those doing the job analysis to document all of the steps taken.
Each of the methods has strengths and weaknesses, and a combination of methods
generally is preferred over one method alone.

10. DEVELOPING YOUR
SELECTION PROCESS
K N O W I N G T H E R E Q U I R E M E N T S F O R T H E
J O B , L E A D S Y O U T O C R E AT I N G A
S E L E C T I O N P R O C E S S

11. I N F O R M AT I O N
N E E D E D TO S E L E C T
T H E B E S T
C A N D I D AT E
Skills Behaviors
Education Experience
Candidate
requirements
Based on your job requirements, what
information is needed to evaluate your
candidates?
Job Requirements
A. Summary of Position
B. Job Duties
C. Computer Skills and Software
D. Reporting Structure
Employee Requirements
A. Education and Training
B. Skills and Aptitudes
C. Environment and Physical
D. Licenses/Certifications

12. H O W W I L L YO U
CO L L E C T T H E
I N F O R M AT I O N ?
Application
Resume
Phone
interview
Skills
testing
Job fit
assessment
Cultural Fit
assessment
In person
interview
Reference
Checking
Offer
Applicant tracking system or manual
process?
What skills need to be tested? (those
required to perform work on first day of
employment)
What behaviors need to be evaluated and
how?
How will experience be gathered?
(references and / or resume)
How will education be captured and
verified?
What level of importance is placed for each
component of the process?
What is the intent of the process?
Screening in or screening out of
candidates?

13. G O A L S : M A K I N G T H E
P R O C E S S O B J E C T I V E
A N D
I D E N T I F I C AT I O N O F
T H E B E S T
C A N D I D AT E S
Best Candidates
5%
screened
out from
phone
interview
10%
screened
out for lack
of job fit
30%
screened
out for lack
of skills
1. Creating a level field for all
candidates is the goal for any
selection process
2. Identify any potential hurdles for
ANY candidate that may apply
3. Ensure the use of technology
does not unintentionally screen
out your best candidates.
4. Identify clear expectations for
the process
TO BE SURE YOUR HAVE THE
RIGHT PROCESS….

14. VALIDATION
I S Y O U R P R O C E S S T R U LY J O B - R E L AT E D ?

15. UNIFORM GUIDELINES ON EMPLOYEE
SELECTION PROCEDURES
• Applicable race, sex, and ethnic groups for recordkeeping
• Evaluation of selection rates.
• Adverse impact and the “four-fifths rule.
– If there is no proven adverse impact of the selection process, then the individual components
are not evaluated.
– If the selection process if found to have adverse impact, then the individual components will be
called into question.
https://www.gpo.gov/fdsys/pkg/CFR-2011-title29-
vol4/xml/CFR-2011-title29-vol4-part1607.xml

16. DATA REQUIRED TO SHOW
VALIDATION
CRITERION-RELATED VALIDITY
• study should consist of empirical data
demonstrating that the selection
procedure is predictive of or
significantly correlated with important
elements of job performance
CONTENT VALIDITY
• study should consist of data showing
that the content of the selection
procedure is representative of
important aspects of performance on
the job

17. VALIDITY
CONSTRUCT AND CONTENT
VALIDITY
• validity analyses are used to determine
how well the items, measure the
construct (e.g. typing ability, leadership
skills, etc.) in question
• how well that construct is defined by
the set of items
CRITERION-RELATED VALIDITY
• compares the results of an assessment
with desired outcomes
• compare the score or scores on the
test to an observable, quantitative, and
meaningful measure of job
performance

18. CRITERION VALIDATION PROCESS
Selection
process Results
PERFORMANCE
MEASURE
Collect &
Combine data for
all participants
Conduct Analysis Provide report

19. CRITERION VALIDATION REPORTING
1. User(s), location(s), and date(s) of study
2. Problem and setting
3. Job analysis or review of job information.
4. Job titles and codes.
5. Criterion measures.
6. Sample description.
7. Description of selection procedures
8. Techniques and results.
9. Uses and applications.
10. Source data.

20. CONTENT VALIDITY REPORTING
1. User(s), location(s) and date(s) of study
2. Problem and setting.
3. Job Analysis
4. Selection procedure and content
5. Relationship between the selection procedure and the job
6. Uses and application

21. CONSTRUCT VALIDITY REPORTING
1. User(s), location(s) and date(s) of study
2. Problem and setting.
3. Job Analysis
4. Job titles and Codes
5. Selection procedure
6. Relationship to job performance
7. Uses and application
8. Source data

22. IS IT LEGAL?
E N S U R I N G T H E P R O C E S S E X C E E D S A L L
R E G U L AT O R Y S TA N D A R D S .

23. TYPES OF DISCRIMINATION
• Disparate treatment
– Requires proof of intent to discriminate
– The employer treats some people less favorably than others because of their race, color,
religion, sex, age, disability, or other protected characteristic
– Liability depends on whether the protected trait actually motivated the employer’s decision
• Disparate impact
– Does not require any proof of intent
– Involves an employment practice that is facially neutral in its treatment of different groups
and in fact falls more harshly on one group than another and is not otherwise justified by
business necessity or other defenses

24. EEOC-ENFORCED FEDERAL LAWS
• Equal Employment Opportunity Commission enforces the federal civil rights employment
discrimination laws.
• Title VII of the Civil Rights Act of 1964
– Race, color, sex, pregnancy, religion, national origin
– Prohibitions against both disparate treatment and disparate impact
– Use of neutral selection devices most commonly challenged as disparate impact
• Americans with Disabilities Act
– Prohibits discrimination on the basis of disability
– Disparate treatment
– Disparate impact
– Class cases are difficult for plaintiffs and are very rare

25. EEOC-ENFORCED LAWS
• Age Discrimination in Employment Act of 1967
– Disparate treatment
– Disparate impact is more narrow than Title VII
• Reasonable factor other than age defense
• May not apply to hiring
• Burdens of proof are more favorable to employers
• Equal Pay Act
– Prohibits sex discrimination in pay if certain conditions exist
– No disparate impact
– Any other factor other than sex defense

26. OTHER EEOC-ENFORCED LAWS
• Genetic Information Nondiscrimination Act
– Prohibits discrimination because of genetic information.
– Genetic information includes family medical history
– Does not prohibit disparate impact discrimination

27. TITLE VII DISPARATE-IMPACT
BURDENS OF PROOF
• 1. A plaintiff must prove that an employer uses a particular employment practice that
causes a disparate impact on the basis of a prohibited factor, such as race or gender. 42
U.S.C. 2000e-2(k)(1)(A)(i).
• 2. If a plaintiff proves disparate impact, the defendant must then prove that the
employment practice “is job related for the position in question and consistent with
business necessity.” 42 U.S.C. § 2000e-(2)(k)(1)(A)(i).
• 3. If the employer satisfies its burden, then the plaintiff can prevail if it shows that the
employer refused to adopt an available alternative employment practice that has a less
disparate impact and serves the employer’s legitimate needs. 42 U.S.C. § 2000e-
(2)(k)(1)(A)(ii) and (c).

28. FOUR-FIFTHS RULE & STATISTICAL
SIGNFICANCE
• A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or
eighty percent) of the rate for the group with the highest rate will generally be
regarded by the Federal enforcement agencies as evidence of adverse impact, while a
greater than four-fifths rate will generally not be regarded by Federal enforcement
agencies as evidence of adverse impact. 29 C.F.R. § 1607.4(D).
• Statistical significance
– Greater than two or three standard deviations
– Regression analyses
• Practical significance

29. UNIFORM GUIDELINES ON EMPLOYEE
SELECTION PROCEDURES (UGESP)
• 29 C.F.R. § 1607 - Legal standards that govern the use of selection devices like tests
• When analyzing whether the use of an employment test has violated Title VII, the focus of
the inquiry is on whether the test as applied to a specific set of individuals seeking a
specific job has produced a disparate impact that is not job related.
• Any selection procedure that has an adverse impact on the hiring, promotion, or other
employment or membership opportunities of members of any race, sex, or ethnic group will
be considered to be discriminatory unless the procedure has been validated or otherwise
complies with UGESP. 29 C.F.R. § 1607.3A.
• Whether a test or other selection device causes a disparate impact and the use of a test or
other selection device is job-related or otherwise lawful are specific to the employer and
not to the test itself.
• Users of selection procedures are responsible for compliance with UGESP
• Good faith reliance on UGESP provides a defense to any claim. 42 U.S.C. § 2000e-12(b).
• UGSEP and other EEOC regulations require record keeping

30. EEOC INVESTIGATIONS
• Charge
– Aggrieved person
– Commissioner’s charge
– Organization charge
• Investigations
– Requests for information – may include request for electronic data and other records and electronically stored
information
– Onsite visits
– Witness Interviews & sworn testimony
– Subpoenas
– Validation studies as a defense
• Reasonable cause determinations & conciliation

31. EEOC LITIGATION
• No class certification required
• All settlements are public
• Disparate-impact cases are a priority
• Compliance with UGESP is a defense

32. EEOC STRATEGIC ENFORCEMENT PLAN
• “The EEOC will target class-based recruitment and hiring practices that discriminate against
racial, ethnic and religious groups, older workers, women, and people with disabilities.”
• “Racial, ethnic, and religious groups, older workers, women, and people with disabilities
continue to confront discriminatory policies and practices at the recruitment and hiring
stages. These include exclusionary policies and practices, the channeling/steering of
individuals into specific jobs due to their status in a particular group, restrictive application
processes, and the use of screening tools (e.g., pre-employment tests, background checks,
date-of-birth inquiries). Because of the EEOC's access to data, documents and potential
evidence of discrimination in recruitment and hiring, the EEOC is better situated to address
these issues than individuals or private attorneys, who have difficulties obtaining such
information.”

33. DEFENSES TO EEOC INVESTIGATIONS
AND LITIGATION
• EEOC has investigated and litigated many cases that involve the use of selection
devices like and including tests.
• Defenses
– Lack of adverse impact
– Validation studies

34. DOCUMENTATION
1. Is the selection process reflective of the requirements of the job?
2. Are the tools being used in the process valid and reliable?
3. Is there data to support the validation?
4. Is there any adverse impact resulting from your selection process?
5. Are you collecting appropriate data?

35. QUESTIONS?