The Birkman Method, Legal Defensibility, and the Equal Employment Opportunity Commission (EEOC)

When used for selection, personality assessment typically does not discriminate against age, gender, or ethnicity, something not as common with cognitive ability or intelligence tests. This has been shown consistently in published research, and is also one of the advantages of using personality assessments for selection decisions. This lack of discrimination also makes personality assessment more legally defensible when used in job selection. There is often confusion about what it means for an assessment to be “legally defensible.” The proper context should be used. Often, people ask us “Is Birkman EEOC certified?” or “Is Birkman approved by the EEOC?” Clarification is also needed as to what those statements mean, because the EEOC does not certify assessments nor do they approve of or even review them unless a complaint is filed with them.

When talking about The Birkman Method (TBM) and the EEOC, it usually refers to the appropriateness of using TBM for job selection or other staffing decisions (e.g., promotion, performance appraisal). The use of assessments for selection systems requires legal compliance as well as scientific best practices. In 1978, the EEOC drafted the Uniform Guidelines on Employee Selection Procedures. These guidelines outline all the requirements for selection procedures to be considered valid, fair, and legal. The main conclusions derived are that there can be no discrimination of individuals based on age, gender, or ethnicity. Adverse impact (also called disparate impact or disparate treatment) occurs when a selection system has negative effects on protected demographic groups. An assessment is “legally defensible” when using it for selection decisions causes no adverse impact. Legal defensibility, however, cannot be generalized across jobs. For example, if TBM is used to select sales representatives and no adverse impact is found, but the same found discrimination in accountants, it would be legally defensible for sales reps but not accountants. Therefore, it is inappropriate to make the blanket statement that “this assessment is legally defensible,” because one must apply that statement to each situation in which it is being used, making it job-specific and situation-specific.

A common misconception is that the EEOC certifies or approves assessments. The EEOC is responsible for enforcing laws that make it illegal to discriminate job applicants or employees based on their age, gender, etc. They investigate claims when individuals feel they have been discriminated against by an employer. They do not provide any form of “certification” for any assessment. They review selection procedures associated with assessments whenever someone files a complaint. Therefore, it is misleading for any test publisher to say their assessments are “EEOC certified.”

When developing selection recommendations, researchers at Birkman adhere to best practices for determining selection decisions, as outlined in the Uniform Guidelines. Generally, when The Birkman Method is used for selection, it does not discriminate against protected demographic groups; however, appropriate analyses must be conducted to ensure that is the case.

For more information about Birkman and legal defensibility, contact our team at [e-mail].