Legal Risk in Selection: An Analysis of Processes and Tools

Purpose

This paper reviews a decade of employment litigation to illuminate the most legally dangerous selection devices and employment practices.

Design/Methodology/Approach

A sample (n = 312) of court cases drawn from 10 years of Bloomberg BNA case briefs was analyzed to determine which selection tools (e.g., biographical information blank, interview, cognitive ability test, and psychomotor test) and which selection processes (e.g., violations of the four-fifths rule, administrative inconsistencies, lack of documentation, failure to provide accommodations) are most at risk for litigation for unfair employment practices.

Findings

Results demonstrate that while some selection tools do attract legal scrutiny, dangerous hiring practices such as favoritism against protected classes and improper human resource documentation put employers at far greater risk of suit. When considering cases settled outside of court and those that continued to trial, the data reveal that employers lose employment discrimination cases at a rate nearing 90 % and suffer an average payout of over $1.5 million per case.

Implications

Just as legal challenges once drove the search for selection tools free of adverse impact, the current legal landscape demonstrates the necessity of fair and consistent selection processes. This paper provides evidence of common mistakes in implementing selection systems—mistakes that lead to costly legal battles.

Originality/Value

This paper reduces cumbersome legal records into useful evidence of trends in recent employment law cases. Selection system designers and organizations who implement them will benefit from avoiding the risky hiring practices presented in this paper.