Legal Issues & The Profile

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.
October 11, 2000