This one caught my eye. Not that I’ve been a big David Letterman watcher (past my bedtime), but — as Merrily Archer put it in this LinkedIn post — “resuscitating the Top Ten list one last time” before it’s long forgotten was intriguing.
Even more intriguing was the content of her post, Top 10 Reasons to Acquire Adverse Impact Testing Skills — starting with 10. “The [Equal Employment Opportunity Commission]’s ‘Systemic Initiative’ to eliminate ‘discriminatory barriers in hiring’ — i.e., qualification standards — [was] launched nearly 10 years ago on April 4, 2006 — it’s not too late to catch up!” …
And ending with “the No. 1 reason HR practitioners and in-house employment counsel must understand the theory behind adverse impact analyses and how to conduct them: Turning over applicant flow data — or a hiring database — to the EEOC or in discovery that you have not analyzed for adverse impact is like disclosing a packet of documents that you’ve not read — i.e., legal malpractice!!”
Archer — an employment-discrimination litigator, legal coach and creator of the EEO Legal Solutions website — is very passionate about imparting what she knows about navigating your way through the ever-more-aggressive EEOC. She began her career as a trial attorney there and knows how it works. Or make that knows how it’s supposed to work and not supposed to work.
“I feel strongly that everyone needs to know how to test for AI and how to analyze their own hiring data, especially before turning anything over to the EEOC,” she says. “I’ve seen attorneys at big law firms hand over entire databases in response to an EEOC request for information, without having a clue about what the data actually reveals.”
For anyone who may not know, adverse impact, according to this post on USLegal.com, “refers to employment practices that appear neutral but have a discriminatory effect on a protected group. ”
More specifically, it says:
“Under the EEOC guidelines, adverse impact is defined as a substantially different rate of selection in hiring, promotion or other employment decision which works to the disadvantage of members of a race, sex or ethnic group. The EEOC agencies have adopted a rule of thumb under which they will generally consider a selection rate for any race, sex or ethnic group which is less than four-fifths or 80 percent of the selection rate for the group with the highest selection rate as a substantially different rate of selection. The selection rates for males and females are compared, and the selection rates for the race and ethnic groups are compared with the selection rate of the race or ethnic group with the highest selection rate.”
Sounds pretty convoluted, doesn’t it? In reality, it’s all about the calculations, so EEO and legal consultants would be advised. That said, though, Archer’s No. 7 reason to acquire these skills is worth noting: “Using FREE online adverse-impact calculators … is EASY, even for the math-phobics — i.e., lawyers.”
The Center for Corporate Equality, in its Technical Advisory Committee Report on Best Practices in Adverse Impact Analyses, says determining whether selection, promotion and termination decisions result in adverse impact — i.e., whether “substantial differences in employment outcomes across groups exist” — is an extremely important topic for organizations, yet “there is limited guidance about the specific and proper ways in which these analyses should be conducted.”
In the EEOC’s “Uniform Guidelines on Employee Selection Procedures,” adverse impact falls under Section 4, item D. It doesn’t offer much in the way of calculation help, but if you’re not perfectly clear on everything it says, you’d best read up, says Archer. Better yet, consider yourself warned, by her:
“[Many] defense attorneys put employers at the mercy of the EEOC’s AI analysis, which is likely statistically flawed, based on inaccurate assumptions about the hiring process and actual applicant flow, and calculated to maximize ‘shortfalls’ — i.e., the difference between the expected and actual number of hires in that minority, gender or age group — for settlement negotiations.
“Attorneys can be so myopic: ‘If they didn’t teach it in law school, it must not be relevant.’ Unfortunately, the exact opposite is true. … This area of law is still pretty nascent, but one day soon, I’m convinced that failing to audit for AI will become malpractice — it’s just part of the standard of care and protection that employers need in the systemic era.”
A few other compelling reasons to perfect your AI skills, from Archer’s Top 10:
“9. Since the EEOC shifted its enforcement focus nearly 10 years ago, ‘systemic discrimination’ has become the new phrase that PAYS at the EEOC and among employee-side lawyers.
8. The EEOC uses specific statistical tests to measure whether a challenged practice — e.g., criminal-background check, educational standard — has an ‘adverse impact’ and to calculate damages in conciliation negotiations: HR practitioners and attorneys MUST know how the database will be analyzed and what the numbers say.
2. EEOC systemic cases that have reached litigation demonstrate a high likelihood that the EEOC will [do the AI analysis of your database incorrectly] in a way that hurts [you,] the employer.”