[IPAC-List] Cert rule

Dennis Doverspike dd1 at uakron.edu
Fri Jul 24 22:20:48 EDT 2009


Could you share your reasoning and the facts that support your argument that
the City of New Haven decision says that top-down selection should be
avoided and that banding should be used?

>From what I have seen, the argument has been almost the opposite - the

question of whether banding is permissible, and under what situations, under
New Haven. For example, this was from the SIOP news release:

*************** From SIOP

Also, a procedure called “banding” could be used where instead of giving the
promotion to the top scorer on a test, several candidates whose scores are
in a close range are put into a band or group, Cascio said. Other business
related selection criteria are used to select the successful candidate,
including experience, past job performance, training and licensure to break
the ties. Thus, in settings like New Haven, the use of banding procedures as
developed by I-O psychologists could have resulted in valid testing called
for by the Court majority, but also taking into account the “context” as
preferred by the Court minority.

However, Barrett said he believes the Court decision would prohibit banding.

“It sounds like to me that the Supreme Court, in their decision, is
extending their reasoning to the banding process, so that will not be an
alternative selection procedure for cities,” he said.

Arnold said the court’s decision left banding as an option, but not after
the fact when it is motivated by a racial disparate impact, as in this
particular case.

“Here, the court said banding was not a valid alternative for this reason,”
he said, quoting the court’s decision: “Had the City reviewed the exam
results and then adopted banding to make the minority test scores appear
higher, it would have violated Title VII’s prohibition of adjusting test
results on the basis of race.”


And also from the decision

*************** From the Decision

Cite as: 557 U. S. ____ (2009) 31
Opinion of the Court
A state court has interpreted the charter to prohibit so called
“banding”—the City’s previous practice of rounding scores to the nearest
whole number and considering all candidates with the same whole-number score
as being of one rank. Banding allowed the City to consider three ranks of
candidates (with the possibility of multiple candidates filling each rank)
for purposes of the rule of three. See Kelly v. New Haven, No. CV000444614,
2004 WL 114377, *3 (Conn. Super. Ct., Jan. 9, 2004). Respondents claim that
employing banding here would have made four black and one Hispanic
candidates eligible for then-open lieutenant and captain positions.
A state court’s prohibition of banding, as a matter of municipal law under
the charter, may not eliminate banding as a valid alternative under Title
VII. See 42 U. S. C. §2000e–7. We need not resolve that point, however.
Here, banding was not a valid alternative for this reason: Had the City
reviewed the exam results and then adopted banding to make the minority test
scores appear higher, it would have violated Title VII’s prohibition of
adjusting test results on the basis of race. §2000e–2(l); see also Chicago
Firefighters Local 2 v. Chicago, 249 F. 3d 649, 656 (CA7 2001) (Posner, J.)
(“We have no doubt that if banding were adopted in order to make lower black
scores seem higher, it would indeed be . . . forbidden”). As a matter of
law, banding was not an alternative available to the City when it was
considering whether to certify the examination results.

Dennis Doverspike, Ph.D., ABPP
Professor of Psychology
Director, Center for Organizational Research
Senior Fellow of the Institute for Life-Span Development and Gerontology
Psychology Department
University of Akron
Akron, Ohio 44325-4301
330-972-8372 (Office)
330-972-5174 (Office Fax)
ddoverspike at uakron.edu

-----Original Message-----
From: ipac-list-bounces at ipacweb.org [mailto:ipac-list-bounces at ipacweb.org]
On Behalf Of Pluta, Paul
Sent: Friday, July 24, 2009 5:33 PM
To: Scherer, Cassandra; ipac-list at ipacweb.org
Subject: Re: [IPAC-List] Cert rule


Anything that results in top-down selection should be avoided if you are
using multiple-choice written tests. A strong case can be made against
top-down selection based on the two recent court decisions regarding
firefighter exams in New York City and the City of New Haven. We
currently use banding and certify lists by band. If we are in Band 1,
the cert. list contains all the names in the band. Individual
departments make the final selection from within the band.

Paul E. Pluta, ABD, SPHR
Human Resources Analyst III
Los Angeles County Department of Human Resources

-----Original Message-----
From: Scherer, Cassandra [mailto:CSCHER at milwaukee.gov]
Sent: Friday, July 24, 2009 1:38 PM
To: ipac-list at ipacweb.org
Subject: [IPAC-List] Cert rule

Fellow IPACers:

The City of Milwaukee is currently in the process of reviewing its
certification practices since it recently was given authority by the
State legislature to establish and implement its own certification
rules. Needless to say, we are delighted. However, there are so many
possibilities we could consider that we are uncertain what to do. From
eligible lists, we currently certify the top three scoring names for
non-management positions and the top five scoring names for management

We would appreciate any input you could provide on what the practices
are of your jurisdiction as to the number of people you certify for
vacancies. Also, we wonder if anyone knows of any surveys that have
been done on certification rules. We would also like to hear from you
as to the advantages or limitations that you have experienced through
your certification practices. Any additional information as to how
certification is affected by ties, union contracts, whether an exam is
promotional or original, would be valuable.

Thank you,

Cassandra Scherer

City of Milwaukee DER

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