Establishing a Prima Facie Case
Under Title VII of the Civil Rights Act of 1964, a plaintiff can make out a prima facie case of discrimination with respect to an employment exam by showing that the exam has a disparate impact on minority candidates. To do so, a party must (1) identify a policy or practice (in this case, the employment exam), (2) demonstrate that a disparity exists, and (3) establish a causal relationship between the two. A party can meet the second and third requirement by relying on the “80% rule." As stated by the EEOC:
In the LAST-2 case, Judge Kimba M. Wood found that the pass rate for African-American and Latino candidates was between 54 percent and 75 percent of the pass rate for white candidates.A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact.
|At the signing of the Civil Rights Act of 1964|
Rebutting the Prima Facie Case
The defendant can rebut that prima facie showing by demonstrating that the exam is job related. To do so, the defendant must prove that the exam has been validated properly. Validation requires showing, by professionally acceptable methods, that the exam is predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job for which candidates are being evaluated.
In determining whether an employment exam has been properly validated and is thus job related for the purposes of Title VII, the following factors must be considered:
- the test-makers must have conducted a suitable job analysis;
- the test-makers must have used reasonable competence in constructing the test;
- the content of the test must be related to the content of the job;
- the content of the test must be representative of the content of the job; and
- there must be a scoring system that usefully selects those applicants who can better perform the job.
The LAST-2 decision found that the defendant New York City Board of Education (BOE) failed to rebut the prima facie showing of discrimination because it had not demonstrated that the LAST-2 was properly validated. The court found that National Evaluation Systems (NES), the test developer owned by Pearson, did not comport with the five factors listed above, focusing primarily on the first factor: the sufficiency of NES’s job analysis.
Wholly Deficient Job Analysis
A job analysis is an assessment of the important work behavior(s) required for successful performance of the job in question and the relative importance of these behaviors. The purpose of a job analysis is to ensure that an exam adequately tests for the knowledge, skills, and abilities (KSAs) that are actually needed to perform the daily tasks of the job. The test developer must be able to explain the relationship between the subject matter being assessed by the exam and the job tasks identified.
To perform a suitable job analysis, a test developer must: (1) identify the tasks involved in performing the job; (2) include a thorough survey of the relative importance of the various skills involved in the job in question; and (3) define the degree of competency required in regard to each skill.
The LAST-2 court found that the core flaw in NES’s job analysis was that it failed to identify any job tasks whatsoever. Without identifying the tasks involved in performing the job (required by the first factor discussed above), it was not possible for NES to determine the relative importance of each job task (second factor), or to define the degree of competency required for each skill needed to accomplish those job tasks (third factor). Accordingly, the court found NES’s job analysis to be wholly deficient.
An Inherently Flawed Approach
Instead of beginning with ascertaining the job tasks of New York teachers, the LAST-2 examination began with the premise that all New York teachers should be required to demonstrate an understanding of the liberal arts.
In other words, NES started with the unproved assumption that specific facets of liberal arts and science knowledge were critically important to the role of teaching, and then attempted to determine how to test for that specific knowledge. This is an inherently flawed approach because at no point did NES ascertain, through an open ended investigation into the job tasks a successful teacher performs, whether its conception of the liberal arts and sciences was important to even some New York public school teachers, let alone to all of them.
Survey Says ... Unpersuasive
NES argued that it had surveyed several hundred teachers about the importance of the KSAs that NES identified, and those teachers affirmed their importance, but the court found the argument unpersuasive.
The problem with NES’s approach is that it assumed, without investigation or proof, that specific KSAs are important to a teacher’s effectiveness at her job—namely, an understanding of some pre-determined subset of the liberal arts and sciences—and then asked teachers to rank only those KSAs in importance. The fact that survey respondents stated that certain surveyed KSAs were important to teaching says nothing about the relative importance of the surveyed KSAs compared to any KSA not included in NES’s survey.
The court found that NES cannot determine the KSAs most important to teaching by surveying only those KSAs NES already believed were important. NES should have determined which KSAs to survey based on an investigation of the job tasks performed by successful teachers. Only KSAs which NES has directly linked to those identified job tasks should be included in a survey attempting to determine “relative importance.”
As an example, the court wrote:
Assume that the KSA of reading comprehension has an importance value of 9, the KSA of logical reasoning has an importance value of 4, and the KSA of leadership has an importance value of 20. Assume that NES’s survey would have queried the value of both reading comprehension and logical reasoning, but not of leadership. Ranked relative to each other, reading comprehension would be very important, while logical reasoning might be somewhat important. But in this example, neither is nearly as important as leadership. In this way, NES’s survey would have greatly exaggerated the importance of both reading comprehension and logical reasoning.
Although the survey might be an appropriate way of confirming information gathered through a proper job task investigation, or as a way of determining the relative importance of already-ascertained job tasks, it is not an appropriate way of initially identifying KSAs.
What To Do Now?
Judge Wood stated that NES should begin by first identifying the necessary job tasks for a New York public school teacher. Necessary job tasks could be identified through some combination of (1) teacher interviews, (2) observations of teachers across the state performing their day-to-day duties, and (3) the survey responses of educators who have been given open-ended surveys requiring them to describe the job tasks they perform and to rank the importance of those tasks.
Job tasks must be ascertained from the source—in this case, from public school teachers.
Using the data culled from such an investigation, NES could then analyze these job tasks,
and from that analysis determine what KSAs a teacher must possess to adequately perform the
tasks identified. NES should document precisely how those KSAs are necessary to the performance of the identified job tasks. It is those KSAs that should provide the foundation for the development of the test framework.
The importance of identifying these job tasks is amplified here because every teacher in
New York must be licensed, whether she teaches kindergarten, or advanced chemistry. NES therefore needs to determine exactly what job tasks are performed, and accordingly, what KSAs are required, to teach kindergarten through twelfth grade proficiently. This is likely a daunting task given how different the daily experience of a kindergarten teacher is from that of an advanced chemistry teacher.
Last, NES needs to make sure that the relevant test tests for abilities not already tested for by related exams. In the LAST-2 case, applicants were also required to pass Assessment of Teaching Skills – Written and a Content Specialty Test applicable to the teacher’s subject area before they can become licensed.