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Legal Issues
& The Profile The Profile has been in use since 1967 with tens of
millions administered to individuals about whom employers wanted
impartial pictures of abilities and suitabilities as they operate in
workplace settings. We've called it "workplace wellness" to
highlight the fact that the Profile is a description of wellness and not
a diagnosis of illness. There has never been an adverse finding against the
Profile and, since nobody can guarantee that lawsuits won't ever happen,
there continues to be a standing offer that the Profile will be defended
in court if ever necessary. As one qualified to give expert testimony in
psychometrics and test construction, I can tell you that the reasons for
this long-standing and strong position have to do with the outstanding
engineering of the Profile by its developers. The Profile is a data-driven instrument. The
implications of that engineering feat are numerous. There is no major
underlying theory from which the Profile emerged. Such theories
habitually reflected "zeitgeists" in the field of psychology,
which often carried prejudicial stereotypes in the guise of intellectual
perspective. The Profile is therefore free of "theoretical
assumptions" that can be challenged. All Profile items are included in the instrument
because evidence collected over the last 30+ years says that these items
work reliably and are related to criteria observable in workplace
settings. Over time certain items stop working for various reasons and
they are dropped from the Profile. This process is called re-validation,
and four complete re-validations have been done, the most recent in
1998. The Profile is one of the few instruments used in
the workplace that has a bona-fide Technical Manual, published with
every CD installation. Please understand that this manual conforms to
guidelines established by the American Psychological Association (APA)
which call for detailed descriptions and data on test development,
administration, scoring and evaluating, norms, reliability and validity.
Hence there are virtually no hidden assumptions, hidden flaws and/or
hidden agendas. What the Profile can do is clear to any trained
professional, and its limits are also clear to those with reasonable
analytic skills. Because of its robust construction, the Profile
improves one's position relative to legal issues in employment. All
aspects of employment have liabilities and every part of an employment
process is a test. Therefore, when there is concern about being in
compliance with EEOC, OFCC, ADA and/or other guidelines, all employment
aspects from the ad in the paper up through and including the completion
of a probationary period must be looked at closely. It's worth noting
that less then 9% of EEOC claims were about hiring (1990) while over 60%
were about advancement or discharge. Having expressed some views about the broader
perspective, it's still fair to ask just how the Profile fits into EEOC
and ADA guidelines. EEOC recognizes paper and pencil tests in its
definition of a "selection procedure". EEOC expects selection
procedures to be connected with post-selection criteria by means of
observable evidence (data). The Profile emphasizes such evidence by
connecting standardized scores to both internal and external performance
criteria. EEOC uses statistical estimates for its definition of
"adverse impact" on hiring a minority group. Profile scores
have no direct statistical correlation to minority status and hence
cannot by themselves produce an adverse impact. Profile scores are not selectively
"adjusted" to alter results on the basis of race, color,
religion, sex, or national origin. All raw scores undergo identical
transformation procedures to create "stanine" values. The
Profile does not contain items that directly address race, gender,
ethnicity or socioeconomic status. The Profile does not contain any
gender-specific scales (e.g., the M/F scale). These are some of the
realities that contribute to the Profile's good EEOC standing. ADA restricts employers to the use of certain
pre-employment tests and has sensitized everyone to the timing of any
screening evaluation. At issue is the definition of
"disability" and the use of any test that can provide
diagnostic information about the presence of physical or mental
disabilities. The Profile measures abilities, not disabilities. But
anybody can erroneously decide that the absence of an ability means the
presence of a disability (i.e., the conundrum about whether the absence
of illness implies the presence of wellness and vice versa). If this sort of issue is of concern to clients,
then the conservative approach would be to do absolutely no screening
until a job has been offered. Some have taken the unsound approach of
"playing it safe" by doing nothing of record in selection and
keeping empty personnel files afterwards. Adopting a "Sargent
Schultz" stance could quite likely be viewed as an admission of
guilt, or it may put a company into a "Catch-22" situation. In sum, companies have to be ready to prove with
observable evidence, documentation and data that they did not illegally
discriminate in hiring and that they were not negligent in the
screening processes used to select new employees. While I am not and
have not been speaking as a lawyer in any of the above, I have been
stating matters as a scientist trained in psychology, specifically
statistics, psychometrics and test construction. Based on my
professional background and my experience with the instrument, I can
state that the Profile meets the challenges of proper operation in the
world of work better than most methods presently in use. Allen M. Raffetto, Ph.D.
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