Page 380 - Discrimination at Work The Psychological and Organizational Bases

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14. LAW AND PSYCHOLOGY
Prewett-Livingston, Field, Veres, & Lewis, 1996). Constructs such as per­
sonality traits, personal interests and preferences, and physical attributes
are also assessed in interviews (Huffcutt et al., 2001). Research indicates
that similarity effects exist in interviews, so that greater fit is perceived
for applicants who are similar to interviewers or ideal employees, even
in structured interviews (Werbel & Gilliland, 1999). Thus, although PO
sounds attractive and yields benefits for employees and employers (e.g.,
greater organizational commitment, Cable & Judge, 1996; job satisfaction,
lower stress, and fewer intentions to turnover, Lovelace & Rosen, 1996), it
may be quite dangerous for selection purposes under discrimination law.
Obviously, intentional discrimination can be a problem to the extent that
biases or stereotypes are used to determine this fit, and the limitations of
the disparate treatment model, discussed earlier, may fail to eliminate this
type of discrimination. However, to the extent that the assessment of fit is
a facially neutral practice, it is also subject to disparate impact challenge.
Plaintiffs must first identify what aspect(s) of the selection process cause
an adverse impact to establish their prima facie case. If the aspects of the
process—here, the means for determining "fit"—are "incapable of separa­
tion for analysis" (Title VII, 1993), then the plaintiffs need only identify the
entire process as the basis for their challenge. If PO is based on a "gestalt"
or gut feeling, it is clear that plaintiffs need only identify the PO process
itself as the basis for the adverse impact challenge. The Equal Employ­
ment Opportunity Commission (EEOC) Uniform Guidelines (1978) state
that whenever a selection procedure results in an adverse impact based
on protected group status, the organization using that procedure must
demonstrate job-relatedness or business necessity. As mentioned above,
PJ measurement would seem to meet this requirement. PO, however, may
pose a legal risk to the organization. Although subjective judgments are
not per se illegal and courts may prefer to defer to employers (who are
in better positions to assess needs and qualifications than courts are), em­
ployers are at risk when they rely on such subjective decisionmaking (e.g.,
Giacoletto v. Amax Zinc Co., 1992). HR researchers may want to examine
the possibilities for making PO assessment more objective and concrete,
leading to greater reliability and validity to support the job-relatedness of
the measures.
Assessment of fit does not occur only at time of hire. Other selection
times—promotions, formation of work teams, and appointments to lead­
ership positions—all involve notions of fit and typically involve some de­
gree of subjectivity. Qualifications become imprecise or vague from a legal
perspective. This suggests that much of contemporary HR functioning is
affected by subjectivity in evaluation and should be reexamined by re­
searchers.