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Legal and Fairness Considerations in Employee Selection

Kenneth P. Yusko, Brian L. Bellenger, Elliott C. Larson, Paul J. Hanges and Juliet R. Aiken


Choosing which job applicants to hire constitutes one of the most important decisions organizations can make. It can also be among the most legally vulnerable. Indeed, the current legal situation has been described as the ‘age of litigation’ (Guion, 2011; Guion & Highouse, 2006). Litigation itself is not necessarily negative, as evolving case law and the threat of a legal challenge can motivate and guide organizations to improve their hiring procedures. However, the continual growth of regulations and increased debates regarding the relevance of past guidelines in the United States (for example, see King, Avery, & Sackett, 2013; McDaniel, Kepes, & Banks, 2011), more multinational organizations operating within the boundaries of multiple countries’ hiring rules and regulations, and the general lack of clarity around best practices has resulted in an increasingly complex legal sphere in which employee selection is conducted. This complexity makes it difficult for managers and other employees, especially those working outside of legal and HR specialty areas, to navigate the challenges of identifying and bringing in talent without running undue legal risk. Coupled with the need to address multiple stakeholders’ goals and perceptions, the selection process, particularly as it relates to diversity, has become a convoluted amalgam of legal, ethical, social and financial factors.

The goal of this chapter is to help professionals leverage current legal hiring requirements and standards in order to create and implement more effective and valid employee selection systems. To this end, we begin with a brief overview of key legal developments, including major legislation and case law over the past 50 years. Next, we review some of the professional standards in the field that help guide the development of legally defensible systems. This includes a discussion of both the legal and psychometric concepts that impact the development and implementation of selection systems. We then provide a brief overview of some of the legal events that are currently changing the landscape of selection. While our discussion mainly focuses on the legal environment in the US due to its historical

The Wiley Blackwell Handbook of the Psychology of Recruitment, Selection and Employee Retention,

First Edition. Edited by Harold W. Goldstein, Elaine D. Pulakos, Jonathan Passmore and Carla Semedo. © 2017 John Wiley & Sons Ltd. Published 2017 by John Wiley & Sons Ltd.

focus on developing regulatory standards and oversight (e.g., Gutman, 2008; Myors et al., 2008a), we highlight relevant legal guidelines and practices in other countries where possible. In doing so we hope to provide a more global perspective of legal standards, which is increasingly important as organizations expand their operations overseas.

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