[IPAC-List] Cert rule

[Pluta, Paul]

Dennis,

 

I don't believe I indicated that the City of New Haven decision says anything about top-down versus banding per se.  I simply noted that those two cases (i.e., New York and New Haven) both used top-down selection (i.e., rule of three or rule of five, etc.) and both had a disparate impact on minorities.  There is a huge literature to support the fact that a test of cognitive abilities will almost assuredly result in adverse impact for blacks and Hispanics.

 

"Had the City reviewed the exam results and then [emphasis added] 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."  This statement appears to pertain to post hoc banding to achieve some race-based objective.  Our banding process is routine and has nothing to do with race per se.  We simply acknowledge measurement error and feel it is best in high stakes testing to error on the side of the individual.

 

The real bottom-line is, if you don't want adverse impact, don't use a written test of cognitive abilities (especially not as a first hurdle in a multiple-hurdle process).  If you must use a test of cognitive abilities because that is what the job analysis study results indicate is important for the performance of the work, be sure that gets thoroughly documented.  Based on the New York case, that goes double for documenting the linkages between the KSAs and the tasks performed on the job.  At least then you can defend the job-relatedness and business necessity of the test.  IMHO

 

Paul E. Pluta, ABD, SPHR

Human Resources Analyst III

Los Angeles County Department of Human Resources

Workforce Planning, Test Research, & Appeals Division

 

-----Original Message-----
From: Dennis Doverspike [mailto:dd1 at uakron.edu] 
Sent: Friday, July 24, 2009 7:21 PM
To: Pluta, Paul; 'Scherer, Cassandra'; ipac-list at ipacweb.org
Subject: RE: [IPAC-List] Cert rule

 

Paul,

 

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

 

Cassandra,

 

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

positions.  

 

 

 

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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