Chasing the Title VII Holy Grail: The Pitfalls of Guaranteeing Adverse Impact Elimination

Abstract

Purpose Title VII of the Civil Rights Act of 1964 provided industrial/organizational (I/O) psychologists with a unique role as professional test developers and consultants involved in assisting organizations in establishing the job-relatedness/validity defense to charges of discrimination, specifically charges based on an adverse or disparate impact theory. However, these activities have transmogrified into the fairly common occurrence of public municipalities and organizations demanding the reduction or absence of adverse impact as part of the scope of work or contracts and for practitioners and consultants to guarantee adverse impact reduction or elimination a priori. Plaintiffs and their experts also routinely argue that the observed adverse impact could have been allayed or eliminated if the defendant had only just used alternative testing methods. This then begs the following question: “Are there well established techniques and procedures that can reduce, minimize, or eliminate adverse impact in a predictable, generalizable, and replicable fashion in the same manner that we might guarantee validity?” The present paper seeks to answer this question.