This is not correct, in the U.S. states where I’ve practiced employment law. Are you talking about a particular state?
If this is your interpretation of the US Supreme Court’s decision in Griggs v. Duke Power Company, I would disagree.
Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance.
401 U.S. 424, 436 (1971). What had happened was, Duke Power enjoyed its explicitly racially segregated work force and wanted to keep it, but the newish Title VII of the Civil Rights Act of 1964 said that was illegal, so Duke imposed an intelligence test on certain jobs it wanted to keep white but which didn’t really require high intelligence-as-tested. This had the effect of disproportionately excluding Black applicants, who apparently didn’t do as well on the test for reasons that are not germane to the holding.
Held: If a facially neutral job requirement has the effect of discriminating based on a protected category, the employer has to show that the requirement is “a reasonable measure of job performance”—with a strong undertone of “How stupid did you think we were?” from Chief Justice Burger, writing for a unanimous court.
I have often wondered why use of IQ in hiring isn’t more common, so I just sorta believed it when you said it’s illegal, even though I probably looked into it and figured out it wasn’t on a previous occasion.
OTOH, businesses might be afraid of getting sued anyway, based on the supreme court case.
This is the correct explanation of why nobody does this.
Here is what I hope is a gears-y rundown from a lawyer. I would appreciate feedback as I’ve been pondering a post or sequence in this vein (probably a different topic).
If a company client came to me and said, “I want to hire based on IQ; to hell with Duke Power,” I would say,
“We can make this happen in a legally defensible way. It will slightly increase the likelihood that a plaintiff-side employment lawyer will take the case of a person who doesn’t get hired, because of Duke Power and because IQ tests are so unusual in the hiring context. That, in turn, increases the likelihood that we end up in front of a jury, which might as well be an RNG for our purposes. [Plaintiffs without lawyers almost never make it to a jury, and they are terrible when they do.] You’re raising your annual risk of a big jury verdict by maybe half a percent per year.
“First, I need you to pretend I never went to college, then explain to me (1) why IQ is a good hiring measure for this job. Then, (2) why some other measure isn’t better than IQ (a college degree in your field, for example; remember, I am an average American, I like to think that college degrees mean something). Then, (3) how you arrived at the IQ cutoff you plan to use for this job.
“Next, we need to hire a psychometrician who will write a report endorsing your views on items 1 through 3. The report will also state that whatever discrimination is baked into IQ test results based on {race, gender, religion, ethnicity, national origin, age, disability status*, military service} won’t have a disparate impact on people in those categories. This needs to be a real psychometrician, maybe somebody who works for schools or is a tenured professor, not somebody we found on Expert Witness Search dot com. The report will go in my file and yours. It should be updated every year. If you can’t get this report, I advise you not to include IQ in your hiring rubric.
“Now. Are you sure about your answer to number 2?
I would be looking for an explanation like, “We’re basically DARPA, but with harder problems, for [say] rocketry. Three-quarters of the postdocs we hire with Ph.Ds in actual rocketry wash out because our rocketry is so complex. They stare at the differential equations for five minutes, then vomit. But we did Career Day with a Mensa club and ended up hiring several middle schoolers, who tripled our effectiveness. I cry myself to sleep every night thinking about how even a Ph.D in rocketry is not a good enough cutoff for our hiring decisions. I have tried everything else and still can’t get good people. I dream of rockets, and all I want is to—to rocket them. There’s just something about rocketeering that requires a high IQ.”
Is this more than “demonstrably a reasonable measure”? Maybe. But it’s good to have some safety margin built in, with employment law as with boxing an Oracle AI.
I have an impression that in the US, talking about IQ is coded politically Right. If a firm like Google tried to measure or proxy IQ in applicants, there would be a social backlash.
There are better-predicting measures available to the larger and more organized employers, which also happen to be more defensible because they’re more directly job-related. Many tests, online assessments, portfolio presentations, and interview results are correlated with IQ, but it’s wrong to think they’re a proxy for IQ. IQ could be (in an alternate social acceptability world) a proxy for what employers really want.
Employers are looking for mental flexibility, reasoning power, and the like, but also conscientiousness and ability to actually do useful work rather than JUST being smart. IQ is correlated with success for many things, but that doesn’t make it the best measurement for most of them.
IIRC studies have found IQ is more strongly correlated with job performance than most other things people use. BUT there is one exception—tests that mirror the actual work. Which of course is more legally defensible, in addition to being a genuinely better measure. If I were hiring people, I would probably do interviews just to not seem weird to applicants, but all the real selection would be based on performance testing.
This is not correct, in the U.S. states where I’ve practiced employment law. Are you talking about a particular state?
If this is your interpretation of the US Supreme Court’s decision in Griggs v. Duke Power Company, I would disagree.
401 U.S. 424, 436 (1971). What had happened was, Duke Power enjoyed its explicitly racially segregated work force and wanted to keep it, but the newish Title VII of the Civil Rights Act of 1964 said that was illegal, so Duke imposed an intelligence test on certain jobs it wanted to keep white but which didn’t really require high intelligence-as-tested. This had the effect of disproportionately excluding Black applicants, who apparently didn’t do as well on the test for reasons that are not germane to the holding.
Held: If a facially neutral job requirement has the effect of discriminating based on a protected category, the employer has to show that the requirement is “a reasonable measure of job performance”—with a strong undertone of “How stupid did you think we were?” from Chief Justice Burger, writing for a unanimous court.
I was not talking about a particular state. I was just wrong. Thank you for the correction. I have added a note to the original post.
I have often wondered why use of IQ in hiring isn’t more common, so I just sorta believed it when you said it’s illegal, even though I probably looked into it and figured out it wasn’t on a previous occasion.
OTOH, businesses might be afraid of getting sued anyway, based on the supreme court case.
This is the correct explanation of why nobody does this.
Here is what I hope is a gears-y rundown from a lawyer. I would appreciate feedback as I’ve been pondering a post or sequence in this vein (probably a different topic).
If a company client came to me and said, “I want to hire based on IQ; to hell with Duke Power,” I would say,
“We can make this happen in a legally defensible way. It will slightly increase the likelihood that a plaintiff-side employment lawyer will take the case of a person who doesn’t get hired, because of Duke Power and because IQ tests are so unusual in the hiring context. That, in turn, increases the likelihood that we end up in front of a jury, which might as well be an RNG for our purposes. [Plaintiffs without lawyers almost never make it to a jury, and they are terrible when they do.] You’re raising your annual risk of a big jury verdict by maybe half a percent per year.
“First, I need you to pretend I never went to college, then explain to me (1) why IQ is a good hiring measure for this job. Then, (2) why some other measure isn’t better than IQ (a college degree in your field, for example; remember, I am an average American, I like to think that college degrees mean something). Then, (3) how you arrived at the IQ cutoff you plan to use for this job.
“Next, we need to hire a psychometrician who will write a report endorsing your views on items 1 through 3. The report will also state that whatever discrimination is baked into IQ test results based on {race, gender, religion, ethnicity, national origin, age, disability status*, military service} won’t have a disparate impact on people in those categories. This needs to be a real psychometrician, maybe somebody who works for schools or is a tenured professor, not somebody we found on Expert Witness Search dot com. The report will go in my file and yours. It should be updated every year. If you can’t get this report, I advise you not to include IQ in your hiring rubric.
“Now. Are you sure about your answer to number 2?
I would be looking for an explanation like, “We’re basically DARPA, but with harder problems, for [say] rocketry. Three-quarters of the postdocs we hire with Ph.Ds in actual rocketry wash out because our rocketry is so complex. They stare at the differential equations for five minutes, then vomit. But we did Career Day with a Mensa club and ended up hiring several middle schoolers, who tripled our effectiveness. I cry myself to sleep every night thinking about how even a Ph.D in rocketry is not a good enough cutoff for our hiring decisions. I have tried everything else and still can’t get good people. I dream of rockets, and all I want is to—to rocket them. There’s just something about rocketeering that requires a high IQ.”
Is this more than “demonstrably a reasonable measure”? Maybe. But it’s good to have some safety margin built in, with employment law as with boxing an Oracle AI.
Interesting(and funny!). I would appreciate more posts on this topic or other “gears-y rundown from a lawyer” type posts.
I have an impression that in the US, talking about IQ is coded politically Right. If a firm like Google tried to measure or proxy IQ in applicants, there would be a social backlash.
There are better-predicting measures available to the larger and more organized employers, which also happen to be more defensible because they’re more directly job-related. Many tests, online assessments, portfolio presentations, and interview results are correlated with IQ, but it’s wrong to think they’re a proxy for IQ. IQ could be (in an alternate social acceptability world) a proxy for what employers really want.
Employers are looking for mental flexibility, reasoning power, and the like, but also conscientiousness and ability to actually do useful work rather than JUST being smart. IQ is correlated with success for many things, but that doesn’t make it the best measurement for most of them.
IIRC studies have found IQ is more strongly correlated with job performance than most other things people use. BUT there is one exception—tests that mirror the actual work. Which of course is more legally defensible, in addition to being a genuinely better measure. If I were hiring people, I would probably do interviews just to not seem weird to applicants, but all the real selection would be based on performance testing.