employment litigation

Designing Hiring Infrastructure to Withstand Employment Litigation Threats

In my experience, one of the biggest HR investments aside from payroll tends to be in performance management. This shouldn’t come as much of a surprise. After all, a poorly performing employee can be a significant drain on a company’s productivity and resources.

It follows, then, that a significant amount of time and money would be spent ensuring underperformers improve. The alternative, after all, would be undergoing a lengthy process of disciplinary measures before letting employees go. Then restarting a costly and time-consuming hiring process.

This makes sense. What doesn’t make sense is that there is little investment in preventing poor hiring decisions in the first place. In cases where performance management investment is high, hiring is treated almost as an afterthought.

Instead of investing in scientifically designed and validated selection tools, some employers use older and less accurate hiring methods, like unstructured interviews and instinct. Beyond failing to guarantee a quality hire, this also puts companies at risk of litigation for discrimination. Despite this risk, many companies stick with what they know rather than invest in scientifically-backed hiring methods.

Why? In many cases, it comes down to cost. If employers are skeptical about the effectiveness of data-driven pre-employment tests, then they’re likely to balk at the added upfront costs that can accompany them. Instead, they’ll opt to continue with business as usual.

Another Way to Look at Hiring

This mindset fails to look at the big picture. In reality, smarter hiring practices pay for themselves many times over. Quality pre-employment assessments and other strategic hiring tools can cut costs associated with poor performance, reduce the amount of training necessary for new employees, increase a company’s overall productivity, and shield businesses against employment litigation.

This last point is worth emphasizing because a poorly structured hiring infrastructure leaves companies vulnerable to employment litigation threats. Both the Uniform Guidelines on Employee Selection Procedures and existing court precedents lay out a clear road map for employers to follow if they want to prevent discrimination and avoid employment litigation. But to do so, companies need to develop a validated hiring process that focuses on requirements directly relevant to the job. This is only possible through hiring methods based on in-depth job analyses and objective assessments.

Protecting Yourself From Employment Litigation Threats

Companies should implement test development and validation services that can stand up to scrutiny and inform quality, holistic, and equitable hiring. By doing so, they prioritize hiring for excellence and create a pre-employment process that can handle any potential employment litigation.

With that in mind, here are four strategies to help employers improve their hiring practices and ensure they stay firmly on the right side of employment law.

1. Base your selection on a job analysis.

To ensure you’re making objective hiring decisions, define the qualifications that are necessary for a candidate to perform a job well. This requires an in-depth job analysis.

An accurate job analysis combines job observations with the insights of subject matter experts to identify which tasks, knowledge, skills, and abilities (KSAs) are critical for a position. From there, you can create a pre-employment process that will stand up to scrutiny.

Don’t forget to document every step of the test development and validation process—especially that of job analysis. This will provide you with the receipts necessary to prove the objectivity of your hiring decisions.

2. Create a validation report.

When making hiring decisions, every aspect of your decision-making should be tied directly to a critical KSA. Even more importantly, you’ll need to be able to provide evidence of this connection.

Create a validation report documenting the entire pre-employment development process, including who was involved and the data that served as the foundation of your hiring decisions.

3. Perform regular analysis of your selection tools.

No pre-employment test is going to be bulletproof, nor will any test be immune to the passage of time. That’s why it’s so important to analyze your pre-employment assessments regularly. The goal should be to determine whether any aspect of the process results in group performance differences, specifically with regard to gender or ethnicity.

If you see a clear adverse impact for one particular group, dig deeper to determine why that is. You’ll also want to uncover how to reduce this impact without compromising the overall validity of your testing. In this way, you can remove any inadvertent bias into your test development and validation process.

4. Prioritize assessments over intuition.

Even with a validated, data-backed pre-employment process, there’s always a chance that the human element of hiring can throw a wrench in the works. Too often, I’ve seen hiring managers decide that personal intuition is more accurate than the high-quality assessments.

Overruling data-driven results is a good way to open yourself up to charges of favoritism or discrimination. While there is always some room for personal opinion—especially when deciding between equally qualified candidates—the best way to ensure the integrity of the process is to focus on data.

Hiring shouldn’t be a guessing game. Companies everywhere now have access to the data and technology necessary for making smart hiring decisions every time. These decisions will ensure a better hiring track record and help companies reduce (or eliminate) bias or subjectivity in the hiring process.