Human Resources Legal Issues In Staffing Readings:
Heneman, H. H., Judge, T. A., Kammeyer-Mueller, J. (2011). Staffing Organizations (7th ed.). New York: McGraw-Hill,Chapter 2.
**Sharf, J. C. & Jones, D. P. (2000). Employment Risk Management. In J.F. Kehoe, Managing Selection in Changing Organizations (pp. 271-318). San Francisco: Jossey-Bass.
**Evans, D. (2003). A comparison of other-directed stigmatization produced by legal and illegal forms of affirmative action. Journal of Applied Psychology, 88, 121-130.
Uniform Guidelines on Employee Selection Procedures – on the following website: http://www.uniformguidelines.com/uniformguidelines.html
Although EEO and AA are legal, not psychological topics, they have had an enormous impact on the science and practice of Personnel Psychology, especially as it relates to staffing. In fact, some have called the EEO laws of the 60’s and 70’s the “Bills of Employment Rights” for I/O Psychologists. This is because employers were suddenly responsible for using properly developed indicators of individual differences (instead of poor indicators like class membership, familial relationship, or demographics) as the basis for selection decisions. I/O psychologists are rigorously trained in how to construct adequate psychological measurements, and have a long tradition of providing such measures to organizations (since about 1908). Thus, their skills were suddenly in very broad demand. Since that time, virtually all the large organizations in the US (private and public) have used, and in many cases hired as permanent staff, I/O psychologists. Their value of course goes beyond selection and staffing issues, and I/O psychologists are involved in a tremendous variety of activities within organizations.
One thing that I want to make clear is what the protected classes include. These are race, color, religion, sex, and national origin. Inevitably somebody will get confused and say that “women” or “African-Americans” are protected classes. Technically, this is too narrow. That is, a white male is just as protected under Title VII of the Civil Rights Act as anybody else. For further information on the protected classes, go here: http://www.hr-guide.com/data/G714.htm
In order to determine adverse impact, the four-fifths rule can be applied. This has four basic steps:
Calculate the rate of selection for each group (divide the number of persons selected from a group by the number of total applicants from that group).
Observe which group has the highest selection. This could be, for instance, men or women.
Calculate the impact ratios by comparing the selection rate for each group with that of the highest group (divide the selection rate for a group by the selection rate for the highest group).
Observe whether the selection rate for any group is substantially less (i.e., usually less than four-fifths, or 80 percent) than the selection rate for the highest group. If it is, adverse impact is indicated in most circumstances.
Job Applicants Number Hired Selection Rate (Percent Hired)
A) Men 100 52 52/100 = 52%
Women 50 14 14/50 = 28%
B) The group with the highest selection rate is men, with 52%
C) Divide the women selection rte (28%) by the men selection rate (52%). The women rate is 53.8% of the men rate.
D) Since 53.8% is less than four-fifths, or 80 percent, adverse impact is indicated.
A handy adverse impact calculator can be found at http://www.hr-guide.com/data/analysis.htm – look here for additional explanations. Have fun!
Important terms from readings:
EEO, Civil Rights Acts, Affirmative Action, Executive Order 11246, tort, common law, selection procedure, four-fifths rule, applicant, discrimination, disparate treatment, adverse impact, content, criterion, and construct validation, ADA, ADEA, BFOQ, CRA
Please answer any three of the following questions. This assignment is worth 15 points – 5 points per question.
1.What is the difference between EEO and AA? Define each term and discuss their sources (legislative, executive, judicial branch of government) and their intended purposes. How do they support each other? How do they conflict?
2.What is the Uniform Guidelines on Employee Selection Procedures? To whom do the guidelines apply? What do they cover?
3.The Guidelines “do not require a user to conduct validity studies of selection procedures where no adverse impact results.” What is a selection procedure? What is adverse impact? How would you determine whether your selection procedure had adverse impact? Why would an employer not want to find out whether a selection procedure was valid?
4.What is the nature of the distinction between Affirmative Action (AA) and quotas?
5.Define criterion-related, content, and construct validation. How are they related? Which is most important under the law? Which is most important to an employer trying to select the best applicant?
6.Based on Sharf and Jones’ analysis, what would you recommend employers use for selection of job applicants?
Please read all supporting documents carefully.
Please cite your sources in your answers (Last Name, Year) and include a reference section at the end. Journal of Applied Psychology
2003, Vol. 88, No. 1, 121–130
Copyright 2003 by the American Psychological Association, Inc.
0021-9010/03/$12.00 DOI: 10.1037/0021-9010.88.1.121
A Comparison of the Other-Directed Stigmatization Produced by Legal and
Illegal Forms of Affirmative Action
David C. Evans
Recent studies have begun to show that the stigma of incompetence sometimes directed toward the
beneficiaries of affirmative action may be significantly reduced as the preferences granted to women and
minorities become more moderate. The author examined whether the stigmatization of African Americans would differ under hiring policies that represented legal and illegal levels of racial preference
according to federal regulations. Participants were 178 students and 161 corporate employees who rated
fictitious Black and White target employees working under (a) an illegal policy of selection of unequal
candidates, (b) a legal policy of selection of comparable candidates, or (c) equal opportunity. Participants
rated Black targets’ achievement-related traits lower than White targets only under the illegal policy.
Under the legal policy, no such stigmatization was observed. Additional dependent measures and
theoretical implications were explored.
whether, when, and how much it affects race relations in the
Affirmative action-related stigmatization is said to occur when
the appraisal of a beneficiary’s performance or ability to perform
is more negative than it would be in the absence of race and gender
preferences. Such stigmatization may be severe to the point that a
beneficiary is appraised more negatively than a similar nonbeneficiary. Scholars have recognized that this form of stigmatization
may consist of both other-directed and self-directed components.
The competence of so-called “affirmative action hires,” that is,
women and ethnic minorities who are thought to have received
jobs, promotions, contracts, or academic positions because of their
sex or race, may be doubted by their colleagues and superiors (e.g.,
Carter, 1991). Women and minorities may also experience selfdoubts about their ability to perform (e.g., Blaine, Crocker, &
Major, 1995; Steele, 1990). Additionally, when nonbeneficiaries
feel unfairly bypassed as a result of racial preferences, they may
further associate global negative attitudes with their minority coworkers (Heilman & Herlihy, 1984). Certainly, scenarios in which
these components exacerbate each other are not hard to imagine.
Both theory and research have shown the potential for race and
gender preferences to lead to stigmatization. Theoretically, the
attributional schema of augmenting and discounting (Kelley, 1972)
are the cognitive mechanisms thought to be responsible (see Heilman et al., 1992). Of these two processes, discounting is more
immediately relevant, although we explore the role of augmenting
below. In the context of affirmative action, discounting occurs
when (a) the occupational performance of beneficiaries is attributed to race and gender preferences (external factors) rather than to
personality strengths (internal factors) or (b) beneficiaries are
perceived to possess lower levels of those personality strengths
than would be perceived in the absence of race and gender preferences. Laboratory tests of these processes have shown that the
work orientation, performance, and competence of individuals
who are selected for positions entirely on the basis of their group
membership have been discounted, both by others (Garcia, Erskine, Hawn, & Casmay, 1981; Heilman et al., 1992) and by
When I go to college campuses, I hear a lot of students say, ‘You
know, you’re right. Every day that I walk into class I have this feeling
that people are wondering whether I’m there because I got in through
affirmative action.’ The reality is that the stigma exists. It exists, and
they know it exists.
—Ward Connerly, Interview with Interracial Voice
(Byrd, April 24, 1999, para. 8)
Since its inception in 1965, affirmative action has labored under
a variety of ethical criticisms. Over the years it has been criticized
in regard to its distributive justice, its constitutionality, and its
effort to establish diversity as a fundamental social goal. By and
large, vested interest has led to disagreement across the color line
on all of these criticisms, and without a true consensus, there has
been much controversy over affirmative action but little reform.
During the 1990s, however, a new criticism emerged, specifically
that the beneficiaries of affirmative action programs may be “stigmatized” as a result of race and gender preferences (see Heilman,
Block, & Lucas, 1992; Steele, 1990). The notion that people at the
workplace may come to doubt the work ethic, performance, and
competence of women and minority Americans suggested to many
that affirmative action might be harming the very people it was
intended to help. If proved to be true, this criticism has the power
to unify minority and majority groups against affirmative action
more so than any criticism before it, a development that would
bear heavily on the future of such programs. Given this political
potential, it is important for social scientists to carefully examine
the hypothesized “stigma of incompetence” and to document
This work was done in partial fulfillment of David C. Evans’s doctoral
dissertation at the University of Iowa. I thank Daniel J. Garcia and Diane
M. Garcia for their role in programming the Internet site used for data
collection, and Peggy C. Evans, Bradley D. Olson, and Robert S. Baron for
their intellectual contributions.
Correspondence concerning this article should be addressed to David C.
Evans, Department of Psychology, 313 Bailey Hall, Union College, Schenectady, New York 12308. E-mail: firstname.lastname@example.org
themselves (Heilman, Simon, & Repper, 1987; Jacobson & Koch,
These stigmatization studies generally involve artificial groups
instead of demographic minorities and laboratory analogues of
affirmative action policies. Nonetheless, this small number of
empirical studies has supported a large volume of theoretical
discussion. At present, this research has now moved toward testing
stigmatization processes in situations that more closely resemble
the workplace. With this step, a number of important issues arise.
Foremost, theorists have begun to suspect that real world preferences, where they exist, are unlikely to be so strong as to completely bypass the consideration of a candidate’s qualifications
(Reskin, 2000). Instead, race and gender preferences most likely
range from weak to strong according to the weight they are given
relative to merit considerations (Heilman, Battle, Keller, & Lee,
1998; Plous, 1996). However, in laboratory studies of stigmatization, preferences often have been granted solely on the basis of
race or gender without any consideration of merit. For example,
experimenters in a typical laboratory paradigm have been instructed to say, “regardless of how each of you did on the inventory, you [pointing to the subject], since you’re a man (woman),
will get to be the leader for this task” (italics and parentheses
Heilman et al.’s, 1987, p. 64). Some scholars have argued that
absolute preferences such as these have no parallel in actual
practice (Eberhardt & Fiske, 1994; see also Major, Feinstein, &
Crocker, 1994; Nacoste, 1994; Turner & Pratkanis, 1994). If so,
this would pose a considerable challenge to the external validity of
laboratory studies of this phenomenon.
To address this challenge, Heilman et al. (1998) examined
whether stigmatization decreases as race and gender preferences
become weaker along the continuum. This prediction follows
directly from the theory of attributional schema: The less potent
the facilitator (preferences), the less discounting should occur
(Kelley, 1972). In the second of three studies, the other-directed
stigmatization of women hired under no employment preferences
was compared with the stigmatization that occurred under various
levels of preference that ranged from weak to strong. The results
showed that although the levels of preference did not significantly
affect ratings of the personalities of the women, they did affect
ratings of their competence and projected career progress. Raters
appeared to discount the competence of the women less when the
employer was said to give preferences to those who were “determined to be equally qualified,” than when the employer gave
preferences to women “in all cases” (Heilman et al., 1998, p. 197).
Heilman et al. (1998) concluded their study by calling for
additional work “to establish where along this continuum are the
crucial break points, distinguishing one policy from another” (p.
204). Indeed, several provocative questions arise from this request
in addition to examining how levels of preference affect ratings of
African Americans. Primarily, what level of preference is legal
according to federal regulations on affirmative action, and what
level of preference is not? If the break point between legal and
illegal policies can be reasonably established, then the more important question may be asked: How much stigmatization occurs
under legal levels of race and gender preference compared with
levels of preference that are so strong as to be illegal? This
question is critical in understanding the stigmatization phenomenon because scholars have noted for some time that many people
mistakenly assume affirmative action to allow practices that are in
fact illegal, including overwhelmingly strong race and gender
preferences (e.g., Crosby & Cordova, 1996). As such, it is important to examine the possibility that the stigmatization that results
from affirmative action is exacerbated by, or perhaps even dependent on, illegally strong levels of racial preference.
Legal and Illegal Levels of Preference
Plous (1996) identified four theoretical hiring policies that help
to define legal and illegal preferences. His hierarchy focuses on the
potential outcomes as preferences increasingly outweigh merit.
From weak to strong, the levels are (a) selection of equal candidates, (b) selection of comparable candidates, (c) selection of
unequal candidates, and (d) selection of unqualified candidates. At
the first two levels, selection preferences are granted only to
women and minorities who are equally or comparably qualified
with nonminorities. The next two levels describe stronger preferences by which less qualified minorities are selected over nonminorities who are more qualified, and finally, the last level describes
the selection of an unqualified minority over a qualified minority.
How strong are the racial preferences permitted by law? The
short answer is not strong at all. Selecting candidates solely on the
basis of their race without regard to merit is explicitly barred by
U.S. Federal Regulations: “Placement goals may not be used to
supersede merit selection principles” (Affirmative Action Programs, 41 C.F.R. 60.2.16.e4, 2001). Similarly, with regard to
academic admissions, the U.S. Supreme Court ruled in Regents v.
Bakke (1978) that “Race or ethnic background may be deemed a
‘plus’ in a particular applicant’s file, yet it does not insulate the
individual from comparison with all other candidates.” In terms of
Plous’s (1996) hierarchy, both the selection of unequal and unqualified minority candidates (the highest two levels of preference)
are specifically excluded from standard practice: “[T]he regulations in this part do not require a contractor to hire a person who
lacks qualifications to perform the job successfully, or hire a less
qualified person in preference to a more qualified one” (41
C.F.R. 60.2.16.e4, 2001). On the contrary, federal regulations
require contractors to consider the qualifications of the candidates
at several points toward the attainment of their placement goals.
For example, employers must calculate the “percentage of minorities or women with requisite skills” or the percentage who are
“promotable, transferable, and trainable within the contractor’s
organization” (41 C.F.R. 60.2.14) as part of determining the
“availability of minorities and women qualified to be employed”
(41 C.F.R. 60.2.13).
In sum, federal statutes appear to place a division between the
2nd and 3rd levels in Plous’s (1996) hierarchy, thereby prohibiting
the stronger forms of preference, including the selection of unequal
and unqualified candidates, whereas permitting the more moderate
forms of preference including the selection of equal and comparable candidates. In other words, actual affirmative action policies
require that race and gender preferences be granted only to competitive women and minorities and then only when a history of
racial or gender imbalance at a given company has been
Given these statutes, Crosby and Cordova (1996, p. 37) point
out the surprising inaccuracy by which lawmakers’ have referred
to affirmative action as “preference programs.” However, mistaken assumptions about affirmative action may be an integral part
AFFIRMATIVE ACTION STIGMA
of understanding the stigmatization phenomenon. Despite the fact
that the selection of unequal candidates is illegal, survey research
suggests that many Americans believe that this level of preference
typifies affirmative action policies. For example, the General Social Survey has shown that 70% of Whites think it somewhat or
very likely that Whites in today’s job market lose jobs or promotions to less qualified Blacks (cf. Taylor, 1994). Similarly, 40% of
Whites feel affirmative action leads to reverse discrimination (cf.
Eberhardt & Fiske, 1994). Such findings underscore the need to
compare the stigmatization resulting from legal levels of preference with the stigmatization resulting from illegal levels of preference as they are commonly, though mistakenly, construed by the
Hypotheses of the Present Study
Several modifications on past designs were required to perform
the comparison called for above. Primarily, the illegal policy in the
present study was intentionally written to describe a hiring practice
(i.e., the selection of unequal candidates) that violates federal
regulations but at the same time reflects the results of nationwide
opinion surveys cited above. By contrast, the legal policy described a hiring practice that is permitted by federal regulations
(i.e., the selection of comparable candidates). This latter policy
was analogous to the equally qualified level of preference used by
Heilman et al. (1998). However, given that no two candidates are
perhaps ever equal in the strictest sense, this wording was avoided
to be as ecologically valid as possible.
Because Heilman et al. (1998) examined the ratings of women,
the present study sought to examine the ratings of African Americans. In addition, participants also rated European American
targets. This modification made it possible to examine not only
how the ratings of African Americans differed across the policies
but also how the disparity in ratings between African Americans
and European Americans differed across the policies.
These modifications introduced several novel predictions about
the personality ratings of the target employees. First, it was predicted that Black targets working under the illegal policy of
selection of unequal candidates should be rated lower than Black
targets working under the legal policy of selection of comparable
candidates or under equal opportunity (Hypothesis 1). Additionally, it was also predicted that a more severe form of stigmatization
might occur by which Blacks are rated lower than Whites under
the illegal policy of selection of unequal candidates but not so
under the other policies (Hypothesis 2). These hypotheses were
based on the assumption that the racial preferences created by legal
forms affirmative action are not sufficient to lead to the discounting of Blacks’ success, whereas the preferences of illegally policies are sufficient.
It is at this point, however, that augmenting may further contribute to the lower ratings of Blacks than Whites under illegal
affirmative action policies. According to Kelley (1972), augmenting occurs when performance is attributed to internal personality
factors, such as achievement orientation, more so than it would be
in the absence of obstacles. Illegally strong racial preferences may
lower the ratings of Blacks by leading their personality strengths to
be discounted and their weaknesses to be augmented. At the same
time, illegally strong racial preference may raise the ratings of
Whites by leading their personality strengths to be augmented and
their weaknesses to be discounted.
It is interesting to note that the same processes of augmenting and
discounting should lead to higher ratings of Blacks than Whites under
the equal opportunity policy (Hypothesis 3), opposite the stigmatization effect. Affirmative action policies fundamentally assume that
equal opportunity laws do not fully remove the discriminatory obstacles historically faced by minorities (see Major et al., 1994). If this
belief is widespread, then under equal opportunity, Blacks may be
seen to have overcome discrimination when they succeed or to have
succumbed to discrimination when they fail. As such, the theory of
attributional schema would predict that Blacks’ success under equal
opportunity should be augmented (and their failures discounted),
leading them to be rated higher than Whites. Together, Hypotheses 2
and 3 lead to the prediction of a disordinate or cross-over interaction
of race and policy, as depicted in Figure 1.
All of the above comparisons were also performed on a measure
of stigmatization that is generally overlooked, namely, the locus of
the attributions that people make for the performance of affirmative action beneficiaries. Attributional locus (Kelley, 1972;
Weiner, 1985) refers to internal causes such as the employees’
achievement orientation, or external causes, most likely the race
and gender preferences themselves. Unlike ratings of personality,
the pattern of attributions should show a three-way interaction
between race, policy, and the successful or unsuccessful performance of the target employee.1 As shown in Panel A of Figure 2,
under the illegal policy of selection of unequal candidates, participants should attribute Blacks’ success to external factors, perhaps
even to more external factors than the same performance by
Whites. As the policies begin to practice the more moderate
preferences of legal policies, the attributions for Blacks’ success
should become more internal, and attributions for Whites’ success
should become more external to the point that Blacks’ success
under equal opportunity should be attributed to more internal
factors than that of the same performance by Whites. The opposite
would be predicted for unsuccessful employees as shown in Panel
B of Figure 2. Together, these predictions constitute Hypothesis 4.
Participants and Recruitment
Participants in the study consisted of both businesspeople working in
corporate settings and introductory psychology students from a large
Note that the performance of the target employee did not enter into the
predictions for personality ratings nor was it included in Figure 1. The
reason is that, perhaps surprisingly, the theory of augmenting and discounting predicts no difference in the pattern of the two-way interaction of race
and policy across the successful and unsuccessful targets, (i.e., it predicts
no three-way interaction). Under selection of unequal candidates, Blacks’
successes should be discounted, but their failures should also be augmented, thus leading them to be rated lower than Whites whether they are
successful or unsuccessful as predicted in Hypothesis 2. Under equal
opportunity, Blacks’ succe…
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