Get Ready Hiring Managers: Here Comes the EEOC, and It’s Mad!

In case you were enjoying yourself over the holidays instead of reading my critically-acclaimed (OK, criticized) articles, my objective is to bring best practices to the HR forefront. Experience shows organizations that make informed hiring and promotion decisions (e.g., based on objective job-related tools) tend to have happier employees, are more successful, and reduce their potential for unfair hiring practice challenges.

That said, in case you might have missed Hiring the Kind of Salespeople You Only Dream About, I found John Zappe’s EEOC article a great companion. That is, if your organization routinely uses credit checking when hiring salespeople, you might want to know how the present Washington administration treats employers who don’t do their hiring homework.

(It’s OK, I’ll wait here while you catch up).

Get Ready!

We live in a confusing world where politicians are always on the lookout for reasons why their voting block is not being hired; where the government does not require organizations to hire unqualified employees; and, where adverse impact is not illegal. On the other hand, if someone thinks your organization does not have enough employees of the right color, gender, age, religion, and so forth, government agencies are empowered to be in your face!

Let’s start with an oversimplified explanation of the audit process. First, they (EEOC or OFCCP) process a complaint. Second, auditors use stats to examine your employee demographics. Third, if the stats show adverse impact, you are (on the face of the data) guilty of discrimination. The government could care less about how individual employees perform. Analysis is done at the group level. This can catch even the largest organizations flat-footed. Predictably, teams of $750/hour attorneys will be hired, everyone will argue back and forth for months, and eventually the organization $ettle$ out of court. (Note, although there are hiring exemptions extended to small business and special interest groups, best practices work for everyone).

Get Set!

The outcome of a legal challenge is unpredictable. The cost of a legal challenge is not. There are ways organizations can substantially strengthen their defense; and, the best part is, the government even tells you how to do it! Let’s say that, on the face of statistical analysis, your organization looks like a socially bankrupt, adverse-impact loving, discrimination-monger. No problem. Just show them records outlining: business necessity, job-relatedness, validation, documentation, tracking, and efforts to reduce adverse impact.

What? You don’t have them? You have a better way? Who made that decision? No matter. You’re screwed and your attorney is about to get a brand new Mercedes. You see, organizations that do not care about following best practices because their goal was filling open slots and surviving probationary periods inevitably have both weak employee bench-strength and shoddy legal credibility.

Go!

Let’s re-visit credit checking. The main reason why organizations only hire people with good credit scores is “everyone knows” they perform better. Right? Wrong? Maybe? Consider this: Low-income people usually have poor credit scores. High income people usually have better credit. But wait! Protected groups are usually low income. Knock, knock. Who is there? Audi! Audi who? Audi-tor! Open your wallet, and stop your clocks. This is going to hurt!

Unless you can document (using pencil and paper) how bad credit is directly related to job performance, you really don’t have a legal credibility (or job performance) leg to stand on. It makes as much sense as reading horoscopes and refusing to hire anyone other than a Gemini because you think he or she will give you twice the productivity.

Establishing Validity

You cannot just ask a credit report or test vendor for assurance his or her test works as promised. That’s a non-starter. Even if someone else already did all the validation work, you still have the responsibility to show your job is essentially the same as theirs … business necessity, job relatedness, and validity.

Making a strong case for credit checking as a hiring tool always starts with thoroughly understanding the job. It might be appropriate in jobs where employees or salespeople handle valuable goods or have ready access to cash. In this case, business necessity might be argued that employees with prior credit problems are more likely to steal than people with clean records.

We’re done now, right? Nope! The EEOC and OFCCP like to see something called criterion validity. That is, they want more than your opinion. They want proof that scores accurately predict job performance. This can either be present-day (concurrent validity) or future-oriented (predictive validity). Present-day validation studies compare today’s credit scores to today’s job performance. Future-oriented studies require collecting (and ignoring) credit scores, waiting long enough to get a good reading on performance, and then comparing them.

Next, we have to define job performance. In the case of salespeople who handle cash we might use shortages. Or, we might examine shrinkage if salespeople work around negotiable goods. Employees who may be tempted to give concessions or award services might require deeper investigation. Every job has different performance criteria. The golden rule is if you cannot define it, then your reason for using it becomes weaker and weaker.

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Scoring

Then we have the whole issue of how we use the scores we get. Should we use low, medium, or high bands? Maybe zero to one hundred? How about pass/fail? Do we look at only a few people or a whole gaggle? Banks for example, know sample-sizes can be misleading. They analyze huge numbers of borrowers and look for trends. Why do you think they ask you how long you lived at your last address or whether you owned a home? Taken alone, these tidbits provide little data, but when combined with other factors, they give the banks enough information to evaluate the risk of lending you money. (Contrary to what the media claim, the business of banking is lending money … they just want to get it back).

Just remember, every decision has its consequences.

Make Your Own Prediction

Here’s a prediction to think about. Which of the following organizations is more likely to be considered a socially bankrupt, adverse-impact, discrimination-monger? Company A that conducts traditional interviews and hires only applicants with good credit? Or, Company B that follows best practices by showing business necessity and job relatedness, uses validated tools, keeps documentation, tracks adverse impact, and makes ongoing efforts to reduce adverse impact?

Seems like a no-brainer to me.

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  • http://www.talmax.com Jari King

    Dear Dr. Williams,

    Given the attitute of Washington today toward the business community, how could anyone disagree with your conclusions?
    They are in fact, a reality!

    I truly believe, after 30 yaers in the recruiting business, that most employers abhor discrimination and do their level best to avoid discriminating when hiring for their companies.

    I can see the need to follow rules and ask questions of prospective employees in a way that does not discriminate on the basis of a long (and growing) list of criteria.

    I do however, have a problem with the make-up of criterion validity in this case. Just how can small to mid-sized companies provide proof that a measurement like a credit score can accurately predict job performance. What kind of administrative nightmare presents itself to gather and assess data that will satisfy the ever encrouching EEOC and OFCCP?

    It boggles the mind and adds uncalculated expense to the hiring process at a time when employers are attempting to lower hiring costs.

    So instead, I assume employers should just dispense with criteria like that indicated in this article and ask a job candidate when they want to start and perhaps even, how much do you want us to pay you?

  • Dave Pollock

    In other words, we’re all created equal but the EEOC feels that some are more equal than others… and the lawyers, auditors, and plaintiff’s know who they are. The rest of us have to pay for proving that they’re not… using the rules created, defined, and updated by the EEOC, with the exception of “small businesses and special interest groups” who get a pass because, well, they’re special! So, fairness doesn’t apply to them.

    Shakespeare had it right in Henry VI.

  • Megan Stanish

    Thank you, Dr. Williams, for a very detailed, very pointed and very important article. Whether or not we agree with the criteria or the required validations, they exist and will be a nightmare for companies that aren’t aware, aren’t shoring up and ARE audited. It’s good to get the word out.
    ~ Megan

  • http://www.esrcheck.com/ Lester S. Rosen

    Great article. However, I would offer one technical point that is worth keeping in mind. An employer that utilizes an employment credit report does NOT contain a credit score. An employment credit report is a special type of report that does not contain the applicant’s credit score, or certain other information such as age. The report does however contain a “credit history,” which shows debt level, the type of creditors and payment history for example. Four states have already placed limitations on the use of credit reports, and other states are considering it. A bill has just been introduced in Congress to limit credit reports. The best practice for employers when it comes to credit reports is to use them sparingly and only for positions where there is a clear business justification, such as an employee that has fiduciary responsibilities, or that has access to cash or assets. Keep in mind that the credit report is only run typically AFTER a candidate is a finalist, so presumably any decision has been made on factors other then the credit report. In our experience, is rare for an employer to withdraw an offer or not proceed with a hire based upon a credit report unless the report disclosed a gross problem that is fundamentally inconsistent with the needs of the job. An applicant must consent to a credit report, and most applicants that feel their credit report is a problem will discuss it ahead of time in order to neutralize any concerns the employer may have. Most HR professionals also realize that during a recession, a credit report may not be perfect, and they are subject to mistakes. For more information on employment credit reports, see: http://www.esrcheck.com/wordpress/2009/08/13/basics-of-credit-reports-and-background-checks/