I listened to an interview with Anne Murphy Paul (if I remember her name
right), author of "The Cult of Personality", wherein she criticizes the
scientific foundations of the thousands of personality tests, with special
reference to the MMPI and some Myerson (?) test based (with violence to
the underlying thought) schematically on Jung. She was asked whether
these tests raise any legal issues and she said not really, unless
some of their questions trample on some existing protected category
of individuals.

I find this very interesting, since it suggests that, although it is
illegal to discriminate against certain groups, it is apparently entirely
legal to create a new group arbitrarily for the sole purpose of discriminating
against it. Thus, although one might not be able to discriminate against
someone who is born before a certain date, one might be able to discriminate
against people who are born during the first 6 months of the year they
were born in, and to favor people who are born in the last 6 months.
From the standpoint of a hiring committee, faced with a stack of perhaps
hundreds of qualified applicants, the merits of the test are of no importance.
In fact, the more irrelevant the test the better, since it will at any
rate have the virtue of diminishing the size of the stack of applicants
to process and will not tend to omit all the ones who are really
qualified.

The author mentioned that Sen. Sam Ervin was concerned about this kind of
testing and introduced legislation to oppose it. I don't know anything
about the fate of such legislation or its current status. I'd like to
know more about that and whether it is really legal to create a group
with the sole purpose of discriminating against it. If that mode of
discrimination becomes adopted as an industry standard, it has
serious implications for the members of the newly created, unprotected
group.
--
Ignorantly,
Allan Adler <ara@zurich.csail.mit.edu>
* Disclaimer: I am a guest and *not* a member of the MIT CSAIL. My actions and
* comments do not reflect in any way on MIT. Also, I am nowhere near Boston.

Allan Adler <ara@nestle.csail.mit.edu> wrote in message
news:<midsk0ht731euvf8adha42k9bnjbj05kc4@4ax.com>... I listened to an interview with Anne Murphy Paul (if I remember her name right), author of "The Cult of Personality", wherein she criticizes the scientific foundations of the thousands of personality tests, with special reference to the MMPI and some Myerson (?) test based (with violence to the underlying thought) schematically on Jung. She was asked whether these tests raise any legal issues and she said not really, unless some of their questions trample on some existing protected category of individuals. I find this very interesting, since it suggests that, although it is illegal to discriminate against certain groups, it is apparently entirely legal to create a new group arbitrarily for the sole purpose of discriminating against it. Thus, although one might not be able to discriminate against someone who is born before a certain date, one might be able to discriminate against people who are born during the first 6 months of the year they were born in, and to favor people who are born in the last 6 months.From the standpoint of a hiring committee, faced with a stack of perhaps hundreds of qualified applicants, the merits of the test are of no importance. In fact, the more irrelevant the test the better, since it will at any rate have the virtue of diminishing the size of the stack of applicants to process and will not tend to omit all the ones who are really qualified. The author mentioned that Sen. Sam Ervin was concerned about this kind of testing and introduced legislation to oppose it. I don't know anything about the fate of such legislation or its current status. I'd like to know more about that and whether it is really legal to create a group with the sole purpose of discriminating against it. If that mode of discrimination becomes adopted as an industry standard, it has serious implications for the members of the newly created, unprotected group.

Do you suppose it should be illegal to refuse to hire unqualified
people? Is it possible to discriminate against unqualified people?
Seems to me that those are really what you're asking. If I'm an
employer, are you suggesting that I should lose my right to refuse to
hire anyone who I perceive does not enjoy working as part of a team?

"Allan Adler" <ara@nestle.csail.mit.edu> wrote in message
news:midsk0ht731euvf8adha42k9bnjbj05kc4@4ax.com...
[...]

I'd like to
know more about that and whether it is really legal to create a group
with the sole purpose of discriminating against it. If that mode of
discrimination becomes adopted as an industry standard, it has
serious implications for the members of the newly created, unprotected
group.
--

It is most likely illegal to create a group in order to discriminate against
it. In 1996 Colorado passed a law by referendum that made it legal (if not
compulsory) to discriminate against gays, which is a group that has no legal
status much like your personality groups. The Supreme Court said essentially
that you cannot create (or identify) a class of people in order to
discriminate against them. What is more, they did this under the Rational
Relationship test of the 14th amendment, a very very rare way to invalidate
a law.

This is a very important rule in my book since it prevents the
butter-side-up / butter-side-down war.


Check out Romer v. Evans 517 U.S. 620, 634-35 (1996),
available at http://supct.law.cornell.edu/supct/html/94-1039.ZS.html

Also the ACLU's take on the outcome
available at http://archive.aclu.org/congress/l080498a.html

"J. Arlen Pruitt" <z@d.com> wrote in message
news:<leuuk0dep4d94iv3hs5fdl5q722gq6uk74@4ax.com>...
It is most likely illegal to create a group in order to discriminate against it. In 1996 Colorado passed a law by referendum that made it legal (if not compulsory) to discriminate against gays, which is a group that has no legal status much like your personality groups. The Supreme Court said essentially that you cannot create (or identify) a class of people in order to discriminate against them. What is more, they did this under the Rational Relationship test of the 14th amendment, a very very rare way to invalidate a law.

I respectfully disagree that SCOTUS went quite as far as you say in
the Colorado Amendment 2 case. As described in the _Romer_ case
summary provided at the Cornell U. website you cite below,

"In order to reconcile the Fourteenth Amendment's promise that no
person shall be denied equal protection with the practical reality
that most legislation classifies for one purpose or another, the Court
has stated that it will uphold a law that neither burdens a
fundamental right nor targets a suspect class so long as the
legislative classification bears a rational relation to some
independent and legitimate legislative end. See, e.g., Heller v. Doe,
509 U.S. 312, 319-320. Amendment 2 fails, indeed defies, even this
conventional inquiry. First, the amendment is at once too narrow and
too broad, identifying persons by a single trait and then denying them
the possibility of protection across the board. This disqualification
of a class of persons from the right to obtain specific protection
from the law is unprecedented and is itself a denial of equal
protection in the most literal sense."

What the amendment attempted to do was to prevent gays from _ever_
getting local governments to pass anti-gay discrimination laws.
That, in itself, deprived gays of the equal protection of the laws
since it took away their option of using the political process to
obtain legal protection from local legislatures. It also deprived
local legislatures IMO of the right to make sensible and necessary
laws, in a way that should not rationally have been made part of a
state constitution, but that is a separate issue and was not directly
the basis of the SCOTUS decision.

This result is different from your statement that "you can't create a
class of persons for the purpose of discriminating against them." A
_non-state_actor_ (private individual) can and does create classes for
the purpose of discriminating all the time, as long as he is not
prohibited from doing so due to such discrimination being based on a
suspect classification. Even then, such discrimination is OK in e.g.
employment if it is a bona fide occupational qualification (BFOQ).
F'rinstance, you can refuse to hire anybody but women to hand out
towels inside the women's shower at your gym, and you can refuse to
hire anybody except members of your religious denomination to teach
religion at your church, although gender- and religious-based
discrimination in employment is otherwise generally prohibited.

Also, most laws, by their very nature, discriminate in a trivial sense
by defining what conduct is permitted and what conduct is prohibited,
and by defining what class of persons that law is intended to apply
to. Using the "anti-gay" example again, there is a noun/verb
distinction between prohibiting "sodomy" and discriminating against
"sodomites", but even if there is little more than semantic difference
in how such laws are (were) applied (before SCOTUS invalidated most
sodomy laws too, in the Georgia case), the difference remains
important. Legislatures can constitutionally ban certain conduct, and
can classify actors for purposes of determining which groups of people
such prohibitions should rationally apply to, but they cannot
constitutionally criminalize or unduly burden mere membership in a
defined status. Your cited Cornell summary of the _Romer_ decision
itself notes "the practical reality that most legislation classifies
for one purpose or another".

For instance, the OSHA law imposes certain requirements on persons it
defines as "employers" for purposes of that law, regarding employee
safety. If you are not an "employer" as defined by OSHA, you are not
bound by those rules. You can, e.g. legally go mow your own lawn
without wearing goggles or paint your car without wearing an approved
filtration mask (although it would be dumb). That is a
classification of people by status that requires members of one status
-- "employers" -- to do or avoid certain things, and does not impose
those requirements on non-members of that status. But it doesn't
say, "Employers have go no reason to complain, and can never again ask
this legislature to help them out as a group in any way" which is
basically what the Colorado referendum said about gays.
This is a very important rule in my book since it prevents the butter-side-up / butter-side-down war.

Huh? What _Romer_ prevented government from doing was identifying an
existing class, and depriving that class of some of the legal
protections afforded to nonmembers of the class, solely out of
animosity toward members of that class. _That_ is what the SCOTUS
held could never constitute a legitimate, rational government purpose
under the Equal Protection clause.

SCOTUS' decision didn't prevent the individual citizen from doing
anything -- _unless_ the government of the jurisdiction where that
citizen lives or works had made it illegal, by statute or ordinance,
to discriminate against gays. Said another way, SCOTUS held that
gays, like anyone else, have a constitutional right to petition their
legislatures for protection under the law. Laws protecting gays do
have a rational purpose, and are not unconstitutional, but are also
not mandatory; the legislature is free to say "no". But laws
preventing the legislature from ever protecting gays, however, take
that "yes" or "no" choice out of the hands of the legislators, and
thus are not rational and not constitutional because their only
possible source and purpose is animosity against gays.
Check out Romer v. Evans 517 U.S. 620, 634-35 (1996), available at http://supct.law.cornell.edu/supct/html/94-1039.ZS.html

I did.
Also the ACLU's take on the outcome available at http://archive.aclu.org/congress/l080498a.html

Thanks, I looked at that too.

Regards,

Mike Jacobs

"cbreitel" <charlesbreitel@yahoo.com> wrote in message
news:aeuuk012vnq2c71s4m6q01c4u4p2v7nelg@4ax.com... Allan Adler <ara@nestle.csail.mit.edu> wrote in message news:<midsk0ht731euvf8adha42k9bnjbj05kc4@4ax.com>... I The author mentioned that Sen. Sam Ervin was concerned about this kind of testing and introduced legislation to oppose it. I don't know anything about the fate of such legislation or its current status. I'd like to know more about that and whether it is really legal to create a group with the sole purpose of discriminating against it. If that mode of discrimination becomes adopted as an industry standard, it has serious implications for the members of the newly created, unprotected group. Do you suppose it should be illegal to refuse to hire unqualified people? Is it possible to discriminate against unqualified people? Seems to me that those are really what you're asking. If I'm an employer, are you suggesting that I should lose my right to refuse to hire anyone who I perceive does not enjoy working as part of a team?
If someone establishes criteria for accepting or rejecting
applicants based upon their membership in an identified class of any
sort, the employer had better be able to show a nexis of some sort
between membership in that class and a boni fide qualification for
the job. The question in the post wasn't about hiring unqualified
people; rather, it was about establishing arbitrary groupings based
upon possibly objective findings that may or may not have any
relationship to one's qualification for a job.

Eliyahu

Eliyahu Rooff wrote: If someone establishes criteria for accepting or rejecting applicants based upon their membership in an identified class of any sort, the employer had better be able to show a nexis of some sort between membership in that class and a boni fide qualification for the job.

I read where Home Depot is going to give preference to returning
veterans and families of deployed soldiers in their hiring. Hooray
for our boys (and girls) in uniform, yellow ribbons and blue stars,
but does this meet that sort of nexus? And won't it run afoul of
whatever it is that causes companies to declare that they are Equal
Opportunity and don't discriminate on the basis of veteran status?
(Of course things don't always mean what they say in this area: the
clear language says employers can't discriminate on the basis of age
with regard to folks aged 40 to 70, but a recent decision said that
some are more equal than others, and it's OK to favor older workers
who are 40-70 over younger workers who are 40-70. Go figure. In
any case I just went through Home Depot's site, and while a pre-employment
test is on the web site, I didn't find any Equal Opportunity Employment
statement.)

--
- David Chesler <chesler@post.harvard.edu>
Iacta alea est

In article <vuj1l01i6ko4gauvj06cpafl80dbeli9aj@4ax.com>,
Eliyahu Rooff <lrooff@hotmail.com> wrote:
If someone establishes criteria for accepting or rejectingapplicants based upon their membership in an identified class of anysort, the employer had better be able to show a nexis of some sortbetween membership in that class and a boni fide qualification forthe job. The question in the post wasn't about hiring unqualifiedpeople; rather, it was about establishing arbitrary groupings basedupon possibly objective findings that may or may not have anyrelationship to one's qualification for a job.

That has been enforced to the extent that, some years ago, my
then-employer told us (programmers interviewing potential programmers)
that we couldn't give applicants for jobs as APL programmers a test of
how well they knew APL because the test (written by us) hadn't been
blessed by any official agency. They could provide us with a test of
how well they knew C, even though that was irrelevant to the actual
position.

Many years ago, I read about one firm that only hired programmers who
were also musicians in the belief that musicians tended to be better
programmers. Despite my not being a musician, I have no problem with
such a policy.

Seth

"Eliyahu Rooff" <lrooff@hotmail.com> wrote in misc.legal.moderated:If someone establishes criteria for accepting or rejectingapplicants based upon their membership in an identified class of anysort, the employer had better be able to show a nexis of some sortbetween membership in that class and a boni fide qualification forthe job.

Really? Why?

If I wish to hire only brunets for my shipping business, that's a
stupid business decision but isn't it my right since I'm not
discriminating against any protected class?

It's understood that I don't have the right to hire only redheads,
however, since that rules out some people on the basis of race.

--
If you e-mail me from a fake address, your fingers will drop off.

I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.

Stan Brown, Oak Road Systems, Tompkins County, New York, USA
http://OakRoadSystems.com

In article <0vt6l0h7lsl92uu29bj9f90fa64vefsbhu@4ax.com>,
Stan Brown <the_stan_brown@fastmail.fm> wrote:
If I wish to hire only brunets for my shipping business, that's astupid business decision but isn't it my right since I'm notdiscriminating against any protected class?

Presumably, yes.
It's understood that I don't have the right to hire only redheads,however, since that rules out some people on the basis of race.

Not since they invented hair coloring.

Seth

>Eliyahu Rooff <lrooff@hotmail.com> wrote:If someone establishes criteria for accepting or rejectingapplicants based upon their membership in an identified class of anysort, the employer had better be able to show a nexis of some sortbetween membership in that class and a boni fide qualification forthe job. The question in the post wasn't about hiring unqualifiedpeople; rather, it was about establishing arbitrary groupings basedupon possibly objective findings that may or may not have anyrelationship to one's qualification for a job.

Seth Breidbart <sethb@panix.com> wrote:That has been enforced to the extent that, some years ago, mythen-employer told us (programmers interviewing potential programmers)that we couldn't give applicants for jobs as APL programmers a test ofhow well they knew APL because the test (written by us) hadn't beenblessed by any official agency. They could provide us with a test ofhow well they knew C, even though that was irrelevant to the actualposition.

Hmmm. I wonder if I was violating the law back in 1988.

I was interviewing somebody for a job involving Unix device drivers.
This person's only previous experience was two years working for
EDS(*) and on his resume showed the right kind of work. He also
answered all my (informal) questions correctly, but I didn't get a
good feel about the answers. They sounded as if they had been
memorized from a book on writing device drivers.

(*) a place then notorious in the industry for wanting drones
rather than people who can think.

So I decided to see if he could perform a simple programming task. I
asked him to write a shell script to output the numbers from 1 to 100.
I said he could use any technique he wanted except brute force.

He said he wasn't sure he remembered all the details of how to do
something like that. Well, OK, writing device drivers doesn't
_necessarily_ involve a lot of heavy shell script work.

So I pointed at the manuals in a bookcase, all carefully labeled
according to which "section" they were. (Anybody who has worked with
Unix knows that the commands are in section 1.) I invited him to look
up anything he was unsure of.

He said he didn't think he could do it right then.

Three days later my boss called me in. The guy's recruiter said he
complained that I had been "mean" to him. I told my boss what
happened, and we enjoyed a good laugh.

But, was I being "unfair" in creating a class, "people who don't know
how to write a shell script", and discriminating against it, when I
couldn't _prove_ that ability to write a shell script correlates with
ability to write and maintain device drivers?
--
I pledge allegiance to the Constitution of the United States of America, and
to the republic which it established, one nation from many peoples, promising
liberty and justice for all.
Feel free to use the above variant pledge in your own postings.

Seth Breidbart wrote:
... my then-employer told us (programmers interviewing potential programmers) that we couldn't give applicants for jobs as APL programmers a test of how well they knew APL because the test (written by us) hadn't been blessed by any official agency.

I'm not sure I believe them. (I believe you, but not your
then-employer.) It's possible, if your then-employer was
a government contractor, or if the job is a quasi-civil-
service position.

--
This account is subject to a persistent MS Blaster and SWEN attack.
I think I've got the problem resolved, but, if you E-mail me
and it bounces, a second try might work.
However, please reply in newsgroup.

In article <u7agl05vuhkrq80uefil7klelru456jikj@4ax.com>,
Barry Gold <bgold@nyx.net> wrote:
Hmmm. I wonder if I was violating the law back in 1988.
.. . .But, was I being "unfair" in creating a class, "people who don't knowhow to write a shell script", and discriminating against it, when Icouldn't _prove_ that ability to write a shell script correlates withability to write and maintain device drivers?

Actually, the class was "people who can't RTFM", which _does_
correlate very highly with ability to write and maintain device
drivers (or any other code).

Seth

"Eliyahu Rooff" <lrooff@hotmail.com> wrote in message
news:vuj1l01i6ko4gauvj06cpafl80dbeli9aj@4ax.com... If someone establishes criteria for accepting or rejecting applicants based upon their membership in an identified class of any sort, the employer had better be able to show a nexis of some sort between membership in that class and a boni fide qualification for the job.

Not at all. It's perfectly legal for me to refuse to hire someone because I
don't like the color of their hair. It's perfectly legal for me to refuse to
hire someone because they went to a university whose football team I don't
like. It's perfectly legal for me to refuse to hire someone who speaks
Spanish, or Klingon for that matter. It's perfectly legal for me to refuse
to hire someone because I don't like the car they drive. I don't have to
show any connection whatsoever between membership in any of those classes
and the job. I can legally refuse to hire someone for any reason whatsoever
*except* that I cannot refuse to hire someone, not if they happen to be a
member of a protected class, but *because* they are a member of a protected
class. If a gay black Jew from Cuba walks into my office and wants a job, I
most certainly *can* refuse to hire him because I don't like his car, and
there would be no legal recourse.

Two things: first, how would I show the reason in court? and second, if I
need the job filled and this person was the best candidate, why would I want
to?

As it happens, I deal a lot with retirees, and they might not like the guy.
If that's the case and my business goes down because I hired him, I can
legally fire him, not because he's a gay black Jew from Cuba, but because
he's costing me business, even if it's not through any intent on his part.
I'm not obliged to go bankrupt just because an employee is in a protected
class.

>Barry Gold <bgold@nyx.net> wrote:Hmmm. I wonder if I was violating the law back in 1988.. . .But, was I being "unfair" in creating a class, "people who don't knowhow to write a shell script", and discriminating against it, when Icouldn't _prove_ that ability to write a shell script correlates withability to write and maintain device drivers?

Seth Breidbart <sethb@panix.com> wrote:Actually, the class was "people who can't RTFM", which _does_correlate very highly with ability to write and maintain devicedrivers (or any other code).

Obviously. But I'm glad I didn't have to prove it in a court of law.
--
I pledge allegiance to the Constitution of the United States of America, and
to the republic which it established, one nation from many peoples, promising
liberty and justice for all.
Feel free to use the above variant pledge in your own postings.

Allan Adler <ara@nestle.csail.mit.edu> wrote in message
news:<midsk0ht731euvf8adha42k9bnjbj05kc4@4ax.com>... I listened to an interview with Anne Murphy Paul (if I remember her name right), author of "The Cult of Personality", wherein she criticizes the scientific foundations of the thousands of personality tests, with special reference to the MMPI and some Myerson (?) test based (with violence to the underlying thought) schematically on Jung. She was asked whether these tests raise any legal issues and she said not really, unless some of their questions trample on some existing protected category of individuals.
This is a great thread.

We have gotten a little muddled between the use of personality and
skills testing in the pre-employment process. Allan Alder began the
thread by mentioning MMPI (otherwise known as Minnesota Multiphasic
Personality Inventory) and Myers-Briggs typology. These are 2 very
different areas.

A validated pre-employment skills test (math, reading, programming,
etc.) will not create disparate impact among any members of a
protected or non-protected class. The operative word is validated. A
validated test is one that has been statistically proven to not ‘weed
out' members of one group while favoring members of another. This
statistical validation is important for disproving systemic
discrimination. The purpose of a skills-based test is to determine
whether or not an applicant has the minimum knowledge (such as reading
ability) to perform the job.

On the other hand, Myers-Briggs is a personality assessment that
evaluates a person's personality based on Jung's criteria
Extroversion/Introversion, Sensing/Intuition, Thinking/Feeling, and
Judging/Perceiving. There is no right or wrong, pass/fail with the
Myers-Briggs. It provides insight into how a person makes decisions,
or what makes them person tick…not their ability to do a job.

One post mentioned that his employer had him stop using a test that
either he or his co-workers had developed. That was because the test
was not validated, or as he said ‘blessed'. Had a member of a
protected class failed that test, and was not hired because of it,
that applicant would have been able to claim discrimination and
challenge the validity of the test. The company would then have had
to prove that they weren't using the tool as a means to
discriminate…all which costs the company upwards of $10,000 to defend,
more to settle.

I'm trying to keep this short so I will say this: Validated,
skills-based testing, based on the qualifications of the position are
valuable screening tools for employers. Employers select employees
based upon job qualifications vs. personal qualifications (skills
interpersonal and job). It is not perfectly legal to not hire someone
because of where they went to school or the color of their hair.
Employment decisions must be made for the right reasons and should
never put the company in a defensible position. With the high costs
involved in defending these claims, a company can be right and still *
lose *

kjr