Sound and Fury, Signifying Nothing

Incorporating elements of gamification, big data, machine learning, and predictive human analytics, Knack is a veritable buzzword oasis. According to Knack, their games are designed to test cognitive skills that employers might want, drawing on some of the latest scientific research. These range from pattern recognition to emotional intelligence, risk appetite and adaptability to changing situations.

John Funge, Knack's CTO, states that "we have used our games to infer cognitive ability, conscientiousness, leadership potential, creativity as well as predict how people would perform as surgeons, management consultants, and innovators." In an Economist article, Chris Chabris, a Knack executive, states that games have huge advantages over traditional recruitment tools, such as personality tests, which can easily be outwitted by an astute candidate. Many more things can be tested quickly and performance can't be faked on Knack's games, he says.

Gary Halfteck, Knack's founder and CEO, says playing a video game can be a better representation of who you are and your skill sets than an employer might get in a one-on-one conversation. "As people, we make many decisions that are biased, whether it's consciously or subconsciously, and we have no good tools to assess and evaluate, let alone predict, what one's potential is," he says.

If Knack's CEO admits that people make many decisions that are biased, what prevents the people at Knack from being biased in the creation, development and implementation of their games? Further, what prevents employers using Knack from being held liable for the biases of those games? The answer to both questions: Nothing.

Algorithmic Illusion

While many companies foster an illusion that scoring/classification is an area of absolute algorithmic rule—that decisions are neutral, organic, and even automatically rendered without human intervention—reality is a far messier mix of technical and human curating. Both the datasets and the algorithms used to analyze the data reflect choices, among others, about connections, inferences, and interpretation.

The recent White House report, “Big Data: Seizing Opportunities, Preserving Values," found that, "while big data can be used for great social good, it can also be used in ways that perpetrate social harms or render outcomes that have inequitable impacts, even when discrimination is not intended."

The fact sheet accompanying the White House report warns:

As more decisions about our commercial and personal lives are determined by algorithms and automated processes, we must pay careful attention that big data does not systematically disadvantage certain groups, whether inadvertently or intentionally. We must prevent new modes of discrimination that some uses of big data may enable, particularly with regard to longstanding civil rights protections in housing, employment, and credit.

Some of the most profound challenges revealed by the White House Report concern how data analytics may lead to disparate inequitable treatment, particularly of disadvantaged groups, or create such an opaque decision-making environment that individual autonomy is lost in an impenetrable set of algorithms. Please see Knack Testing Illegal Under ADA?

Systemic Risk

Workforce assessment systems like Knack's games, designed in part to mitigate risks for employers, are becoming sources of material risk, both to job applicants and employers. The systems create the perception of stability through probabilistic reasoning and the experience of accuracy, reliability, and comprehensiveness through automation and presentation. But in so doing, technology systems draw  attention away from uncertainty and partiality.

While Knack's approach may help reduce an employer's hiring costs and may reduce the impact of overtly biased or discriminatory behavior, the inclusion of one or more potentially "defective components" in the assessments means that employers face the risk that a finding of bias or discrimination of a Knack assessment used by one employer will put all employers that use the assessment at risk. Please see When the First Domino Falls: Consequences to Employers of Embracing Workforce Assessment Solutions.

These "defective components" in assessments may be either design defects (i.e., the adoption and use of certain personality models) or manufacturing defects (i.e., coding errors in the assessment software). The latter is analogous to the coding error at 23andMe that resulted in notices going out to some customers informing them that they had a chronic and life-shortening condition when they did not. Please see On Not Dying Young: Fatal Illness or Flawed Algorithm?

Each day an employer continues to use the Knack assessment, there are more potential plaintiffs with claims against that employer.  Labor and employment laws like Title VII and the ADA, permit an employer to use a third party like Knack to undertake the assessment of job applicants. The use of a third party, however, does not insulate an employer from any claims arising from the assessment usage. Under those laws, an employer is responsible (and liable) for any failures on the part of an assessment or assessment provider to comply with the provisions of those laws.

No Silver Bullet

Just as concerns about scoring systems are heightened, their human element is diminishing. Although software engineers initially identify the correlations and inferences programmed into algorithms, machine learning, predictive analytics, and big data promises to eliminate the human “middleman” at some point in the process.

As Hector J. Levesque, a professor at the University of Toronto and a founding member of the American Association of Artificial Intelligence, wrote:

"As a field, I believe that we tend to suffer from what might be called serial silver bulletism, defined as follows:

the tendency to believe in a silver bullet for AI, coupled with the belief that previous beliefs about silver bullets were hopelessly naıve. 

We see this in the fads and fashions of AI research over the years: first, automated theorem proving is going to solve it all; then, the methods appear too weak, and we favour expert systems; then the programs are not situated enough, and we move to behaviour-based robotics; then we come to believe that learning from big data is the answer; and on it goes."

Similarly, employment assessment companies like Knack market the benefits of science, precision and data over the past fifteen years under the guise of neural networks, artificial intelligence, big data and deep learning, yet what has changed? Employee engagement levels have hardly budged and employee turnover remains a continuing and expensive challenge for employers. Please see Gut Check: How Intelligent is Artificial Intelligence?

Zappos: The Future of Hiring and Hiring Discrimination?

Zappos has launched a new careers site and removed all job postings. Instead of applying for jobs, persons interested in working at Zappos will need to enroll in a social network run by the company, called Zappos Insiders. The social network will allow them to network with current employees by digital Q&As, contests and other means in hopes that Zappos will tap them when jobs come open.

"Zappos Insiders will have unique access to content, Google Hangouts, and discussions with recruiters and hiring teams. Since the call-to-action is to become an Insider versus applying for a specific opening, we will capture more people with a variety of skill sets that we can pipeline for current or future openings," said Michael Bailen, Zappos’ head of talent acquisition.

The idea is that recruiters will monitor the interactions, and alert promising applicants as job positions become available. "Our recruiters are focusing on proactive sourcing…so that we know EXACTLY who we want to interview once a position becomes available," Stacy Donovan Zapar, Zappos' Social Recruiting and Employer Branding Strategist, wrote in a posting explaining Zappos Insiders.

Ideally, the Zappos Insider strategy will result in an engaged, talented applicant pool from which the company can seamlessly fill positions. More importantly, at a company where cultural fit is 50 percent of the hiring equation, encouraging candidates and current employees to interact organically allows the company to gauge whether someone is a good fit before the hiring process officially begins, theoretically saving both time and money.

Zappos’ Bailen said he is surprised that Zappos appears to be the first to drop job listings. "We're hoping a lot of other companies jump on board," he said, but there are compelling reasons why Zappos may find itself alone.

Bias and Discrimination

In a comment to Donovan Zapar’s posting explaining the Zappos Insider initiative, Steve Kuzner asked:

Ultimately, the [Zappos Insider] policy makes the hiring process less transparent for job seekers, who will no longer even know there is an open position until they are deemed worthy to apply for it. While well-intentioned, such opacity provides a shield under which bias, conscious or not, can potentially flourish.

Donovan Zapar responded, in part, by acknowledging that there are laws prohibiting an employer from basing hiring decisions on the race, religion, national origin, gender, pregnancy, disability, genetic identity, or age of applicants (Protected Persons). That response is correct, as far as it goes, but it fails to address the broad scope of Title VII of the Civil Rights Act of 1964 (Title VII), its progeny (Age Discrimination in Employment Act (ADEA), Americans with Disabilities Act (ADA), Genetic Information Non-Discrimination Act (GINA), etc.), their implementing regulations, and court decisions over the past fifty years.

In addition to prohibiting discrimination in hiring, employment laws prohibit discrimination against Protected Persons in regard to recruiting, the work environment, or any other term, condition, or privilege of employment.  Not only do the laws prohibit intentional discrimination, they also prohibit neutral policies that disproportionately affect Protected Persons and that are not related to the job and the needs of the business.

Job requirements must be uniformly and consistently applied to all persons. Even if a job requirement is applied consistently, if it is not important for job performance or business needs, the requirement may be found unlawful if it excludes Protected Persons significantly more than others. Examples of potentially unlawful practices include: (1) soliciting applications only from sources in which all or most potential workers are of the same race or color; (2) requiring applicants to have a certain educational background that is not important for job performance or business needs; and, (3) testing applicants for knowledge, skills or abilities that are not important for job performance or business needs.

[Dis]Connection

Donovan Zapa wrote in her post:

In preparation for this day, we've built a brand new "Inside Zappos" social recruiting presence over the past couple of months on Twitter, Facebook, Instagram, LinkedIn and Pinterest …. We've used these social channels to share our company culture, our people, our campus, our events, the way we do business and also to get to know the people who might like to work for us someday.

Similarly, in response to the question, “How can I stand out from the pack and stay front-and-center in the Zappos Recruiters’ minds?” on the Zappos' Insider site, the company lists six ways to stand out, including: using Twitter, Facebook, Instagram, Pinterest and Google Hangouts; participating in TweetChats; following Zappos’ employees on various social media platforms; and, reaching out to Zappos’  “team ambassadors.” For the most part, all of the foregoing activities require broadband internet access and devices (tablets, smartphones, etc.) that run on those access networks.  A number of Protected Classes will be challenged by both the broadband access and social media participation requirements:

• As noted  by a PewResearch Internet Project Research report, African Americans have long been less likely than whites to have high speed broadband access at home, and that continues to be the case. Today, African Americans trail whites by seven percentage points when it comes to overall internet use (87% of whites and 80% of blacks are internet users), and by twelve percentage points when it comes to home broadband adoption (74% of whites and 62% of blacks have some sort of broadband connection at home).  
• The gap between whites and blacks when it comes to traditional measures of internet and broadband adoption is pronounced. Specifically, older African Americans, as well as those who have not attended college, are significantly less likely to go online or to have broadband service at home compared to whites with a similar demographic profile.
• According to the PewResearch Internet Project, even among those persons who have broadband access, the percentage of those using social media sites varies significantly by age:

Age	Social Media Participation
18-29	90%
30-49	78%
50-64	65%

Social medial participation is not solely a function of age. "Social media is transforming how we engage with customers, employees, jobseekers and other stakeholders," said Kathy Martinez, Assistant Secretary of Labor for Disability Employment Policy. "But when social media is inaccessible to people with disabilities, it excludes a sizeable segment of our population." Persons with disabilities (e.g., sight or hearing loss, paralysis), whether physical, mental, or developmental, face challenges accessing social media. Each of the social media platforms promoted by Zappos - Twitter, Facebook, Instagram, Pinterest, and Google Hangouts - have differing levels of support for those with disabilities (e.g., close captions or real live captions on image content that utilize sound/voice). 

Career transition and talent development consulting firm Lee Hecht Harrison asked hundreds of job seekers via an online poll, “How active are you on social networking sites?” Only forty-eight percent said they're active on a daily basis, with an additional nineteen percent saying they log on about two or three times per week. This leaves thirty-three percent who use social media sites one to three times a month, if at all. 

As Aristotle wrote, “There is nothing so unequal as the equal treatment of unequals.” It is for this reason that employment laws like Title VII prohibit facially neutral policies (e.g.,  enrolling in Zappos Insider, necessitating broadband internet access, and using social media platforms with varying degrees of accessibility ) that disproportionately affect Protected Persons and that are not related to the job and the needs of the business. Zappos' Insider may be a club that is "open" to everyone, but African Americans, persons over forty, and persons with disabilities, among others, will have a harder time being admitted and will be limited in their ability to use all the club has to offer.

Donovan Zapa, in her posting announcing Zappos' Insider, wrote:

[O]ur recruiters are focusing on proactive sourcing, driving people to join our Insider program, having two-way conversations, meeting people, networking, chatting with Insiders, answering questions, engaging on social media, employer branding and proactive pipelining so that we know EXACTLY who we want to interview once a position becomes available. It's old-school recruiting, made new and fresh again. 

It is likely that "old school recruiting" was part of the reason that laws like Title VII, ADEA, ADA and GINA were enacted. Persons making hiring decisions knew exactly who they wanted to interview and that did not include persons of color, women, older Americans, persons with disabilities, and persons of certain faiths. While likely not the intent, Zappos' Insider platform makes discrimination against "those persons" new and fresh (and painful and illegal) again.

Employment Assessments: 21st Century Snake Oil?

The Oxford English Dictionary defines snake oil as "a quack remedy or panacea." The origins of snake oil as a derogatory phrase trace back to the latter half of the 19th century, which saw a dramatic rise in the popularity of "patent medicines." Despite the name, most patent medicines were not officially patented. They were medicines with questionable effectiveness whose contents were usually kept secret.

By the middle of the 19th century the manufacture of patent medicines had become a major industry in America. Often high in alcoholic content and fortified with cocaine, morphine or opium, many of these concoctions were advertised for infants and children. Some level of exoticism in the contents of the preparation was deemed desirable by their promoters and nearly any scientific discovery could inspire a key ingredient or principle in a patent medicine.

From the beginning, some physicians and medical societies were critical of patent medicines. They argued that the remedies did not cure illnesses, discouraged the sick from seeking legitimate treatments, and created negative consequences like alcohol and drug dependency.

By the end of the 19th century, Americans favored laws to force manufacturers to disclose the remedies' ingredients and use more realistic language in their advertising. These laws met with fierce resistance from the manufacturers. Finally, with strong support from President Theodore Roosevelt, a Pure Food and Drug Act was passed by Congress in 1906, paving the way for public health action against unlabeled or unsafe ingredients and misleading advertising.

Are there any similarities between the sales and marketing of snake oil/patent medicine and the sales and marketing of employment assessments? Do the assessments have questionable effectiveness? Are their contents kept secret? Do they market scientific discoveries, in the form of buzzwords, as inspiring key ingredients? Is there public action challenging the assessments?

Questionable Effectiveness?

According to a 2012 study by Oracle and Development Dimensions International (DDI), a global human resources consulting firm whose expertise includes designing and implementing selection systems, more than 250 staffing directors and over 2,000 new hires from 28 countries provided the following perspectives on their organization’s selection processes (the following are excerpts from the study):

• [O]nly 41 percent of staffing directors report that their pre-employment assessments are able to predict better hires.
• Only half of staffing directors rate their systems as effective, and even fewer view them as aligned, objective, flexible, efficient, or integrated. 
• [T]he actual process for making a hiring decision is less effective than a coin toss.

In a 2007 article titled, “Reconsidering the Use of Personality Tests in Employment Contexts”, co-authored by six current or former editors of academic psychological journals, Dr. Kevin Murphy, Professor of Psychology at Pennsylvania State University and Editor of the Journal of Applied Psychology (1996-2002), states:

The problem with personality tests is … that the validity of personality measures as predictors of job performance is often disappointingly low. A couple of years ago, I heard a SIOP talk by Murray Barrick … He said, “If you took all the … [factors], measured well, you corrected for everything using the most optimistic corrections you could possibly get, you could account for about 15% of the variance in performance [between projected and actual performance].” … You are saying that if you take normal personality tests, putting everything together in an optimal fashion and being as optimistic as possible, you’ll leave 85% of the variance unaccounted for. The argument for using personality tests to predict performance does not strike me as convincing in the first place.

Secret Contents?

Using terms like patent-pending, proprietary and trade secret, employment assessment companies claim that they cannot disclose information about their assessment processes. Are these claims legitimate or, like the Wizard of Oz, are the claims used to mask the lack of relevant and legal substance behind the assessments? Or is it a bit of both? 

Even assuming that the confidentiality claims by the assessment companies are appropriate, are there no circumstances in which the companies must disclose information regarding how their assessments are developed and implemented and the results of the assessment usage across a broad population of job applicants? There are. 

In a 2012 decision, a federal appeals court stated the Americans with Disabilities Act (ADA) prohibits employment tests when such tests screen out or tend to screen out disabled people and the use of the test is not job-related for the position in question and consistent with business necessity. The court went on to order that the employer and testing company, Kroger and Kronos, respectively, provide the Equal Employment Opportunity Commission (EEOC) with:

• Any and all documents and data constituting or related to validation studies or validation evidence pertaining to Kronos assessment tests purchased by Kroger, including but not limited to such studies or evidence as they relate to the use of the tests as personnel selection or screening instruments, even if created or performed for other customer(s);
• The user’s manual and instructions for the use of assessment tests used by Kroger;
• Any and all documents (if any) related to Kroger, including but not limited to correspondence, notes, and data files, relating to Kroger; its use of the assessment test; results, ratings, or scores of individual test takers; and any validation efforts made thereto; and
• Any and all documents discussing, analyzing or measuring potential adverse impact on persons with disabilities.

So, it's quick and easy for the regulatory agency (EEOC) to obtain the necessary information, right?No. The EEOC investigation leading to the appeals court decision referenced above has been ongoing for more than six years. It has generated a number of district court and appellate court decisions. None of those decisions have addressed substantive claims of discrimination. They are all decisions relating to the unwillingness of Kroger and Kronos to provide information to the EEOC that would allow the EEOC to determine whether the Kronos assessments illegally discriminated against persons with disabilities.

Please see Kroger and Kronos: Chaos and Disorder.

Negative Consequences?

Employment personality tests discriminate against applicants with mental illness. These applicants are ready, willing and able to work, but are being illegally screened out from employment consideration by personality tests that use a non-validated stereotype of the capabilities of persons with mental illness. Please see What Are The Issues, ADA, FFM and DSM, and Employment Assessments Are Designed to Reveal an Impairment.

Employment discrimination on the basis of mental illness affects all demographic groups. Mental illness is no respecter of age, gender, geography, income, occupation, military status, race, religion or sexual orientation. Persons with mental illness include military veterans returning to the civilian workforce, new and expectant mothers, LGBTs and young adults. Please see Tests Discriminate Against Returning Veterans, Tests Discriminate Against New and Expectant Mothers and Employment Tests Discriminate Against LGBTs.

The illegal screening out of applicants with mental illness has come at a cost of tens of billions of dollars to taxpayers and the U.S. Treasury.  The prevalence of mental disorders has generally remained unchanged over the past 15 years and substantially increased rates of treatment should have resulted in a decline in the percentage of persons receiving disability awards who are diagnosed with mental illness. Sadly, no. People with psychiatric impairments constitute the largest and most rapidly growing subgroup of income support program awards (SSDI, SSI). Please see Costing Taxpayers Billions of Dollars Each Year.

Every year since 1999, more Americans have killed themselves than the year before, making suicide the nation’s greatest untamed cause of death. Being unemployed is associated with a 2-3X increase in the relative risk of death by suicide, compared with being employed. Given that more than 90% of persons who attempt suicide have mental illnesses, a tool like personality testing that illegally excludes persons with mental illness from employment consideration leads to an increase both in perceived burdensomeness and thwarted belongingness/social alienation, two critical elements tied to the risk of suicide. Please see Does the Rising Use of Employment Personality Tests Contribute to An Increase in Suicides?

Marketing by Scientific Buzzwords?

New entrants in the assessment field include ConectCubed, Good Co., Evolv, Knack and Prophesy Sciences They compete with incumbents like Kenexa (IBM), Kronos, SHL, Success Factors (SAP),  and Taleo (Oracle). Marketing claims include:

Our games are fun, but our technology is rock solid. We design and develop our games using state-of-the-art behavioral science, then we use data-mining tools and massive amounts of data to validate and compute the Knacks you earn. (Knack)

We use a powerful combination of cognitive games, biometric signals, and machine learning algorithms to compile actionable insights about you and your teammates. (Prophesy Sciences) 

We have combined decades of academic and business research with sophisticated statistical models to create our Proprietary Psychometric Algorithm. (Good Co.)

Evolv’s patent-pending technology platform unifies and supplements existing data from current systems, then utilizes that dataset to identify fact-based workforce insights that drive measurable ROI. (Evolv)

Kronos helps organizations find value in big data with enhanced analytics. (Kronos)

Public Action?

The EEOC has been attempting to investigate the use of Kronos assessment by Kroger for more than six years. As noted previously, that investigation has resulted in a number of court decisions, not on the substance of the claims of alleged discrimination, but on the requirement of Kronos and Kroger to provide the EEOC with relevant information regarding the assessment and its usage.

That investigation has evolved into a systemic investigation by the EEOC. Systemic investigations involves pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area. As stated by the court in the 2012 appellate decisions referenced previously, it is “a proper inquiry for the EEOC to seek information about how these tests work, including information about the types of characteristics they screen out….“ 

In connection with systemic investigations, the EEOC’s enforcement tools include issuing broad information requests and subpoenas on employers that are named as respondents in EEOC charges, particularly when the EEOC suspects systemic discrimination, and filing pattern or practice class lawsuits in federal court. For some employers, the potential class size can be measured in the millions of plaintiffs. 

The EEOC's systemic investigation of Kroger and Kronos, as well as its investigation of other employers and their assessment companies, is consistent with the EEOC's implementation of its Strategic Enforcement Plan (SEP) for 2013-2016. The first national priority of the SEP is “eliminating systemic barriers in recruitment and hiring.” The SEP goes on to state that “people with disabilities continue to confront discriminatory policies and practices at the recruitment and hiring stages. These include … the use of screening tools (e.g., pre-employment tests …)."

Disability discrimination, including employment assessment litigation, is a significant element of the EEOC's enforcement activities. As shown in the chart below, ADA claims constituted the largest percentage of the EEOC’s yearly litigation filing activity for FY 2013 - almost half of all cases. 

The Importance of This Issue

The long-term fiscal stability of the United States of America depends, in part, on ensuring that Americans with disabilities have meaningful opportunities to contribute to our collective well-being and on eliminating outdated policies that keep people in cycles of poverty and dependency.

More than two decades after the passage of the ADA, the unemployment rate for Americans with disabilities stubbornly remains nearly double that of people without disabilities, while their rate of labor force participation has continued to be abysmally low. Figures from the Bureau of Labor Statistics show that labor force participation for workers with disabilities was 20.3 percent, while the total for workers without disabilities was 69.1 percent—more than three times higher. 

There are many benefits of employment—work enhances skills such as communication, socialization, academics, physical health, and community skills; it factors into how one is perceived by society; it promotes economic well-being (reducing government expenditures on income support programs, Medicare and Medicaid); it leads to greater opportunity for upward mobility; and it contributes to greater self-esteem.