IMPLEMENTING A JUDGMENT OR CONSENT DECREE INVOLVING DISPARATE IMPACT. Richard E. Biddle R.E. Biddle

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1 IMPLEMENTING A JUDGMENT OR CONSENT DECREE INVOLVING DISPARATE IMPACT HOW A MONITOR CAN HELP by Richard E. Biddle R.E. Biddle Overview During an employment discrimination disparate impact case, the plaintiffs' attorney typically uses the services of a statistician with EEO (equal employment opportunity) knowledge who serves as an expert to prove that adverse impact has occurred. If the case contested the job relatedness or validity of employment practices, procedures, or tests used by the employer, the plaintiffs' attorney typically uses the services of a testing consultant with EEO knowledge who serves as an expert to prove that the devices causing the adverse impact were not properly validated (not job related and consistent with business necessity). Sometimes one person serves as both the statistical expert and the testing expert. Usually the relationship between a plaintiffs' attorney and his/her expert ends during litigation, once the expert has testified. This article explains the benefits to the plaintiffs' attorney in using an EEO expert to assist the plaintiffs' attorney in monitoring implementation of the court=s judgment or in fashioning and then monitoring implementation of the consent decree. When the litigation has concluded and the plaintiffs have prevailed, either the court renders its judgment or the two parties negotiate a consent decree, which they submit for court approval. There are two types of Αmonitors who may become involved at this point. One type is named by the court itself for the purpose of advising the court as a neutral third party during implementation of the judgment or consent decree. The costs of this court-appointed monitor are

2 paid by the defendant. The second type of monitor is selected by the plaintiffs' attorney, who has prevailed in the case, for the purpose of advising the plaintiffs' attorney for the class in monitoring implementation of the judgment or the consent decree. The costs of this monitor are also paid by the defendant. The former is a court-appointed expert monitor (monitor for the court); the latter is a class expert monitor (monitor for the class). Introduction After an employment discrimination disparate impact case has been decided and plaintiffs have prevailed, the parties may negotiate and enter a consent decree that requires specific actions on the part of the employer, either for a defined period of time or until specified conditions are met. If the plaintiffs' attorney plans to use an EEO expert to assist in monitoring implementation of the decree, the ideal situation is to include that person as a participant in fashioning the decree. The EEO expert can identify specific, technical EEO-related requirements to include in the decree. The use of an EEO expert at this point can have a profound influence in fashioning a remedy that will help the plaintiff class on a long term basis. Often the two parties are allowed to establish their own procedures for monitoring implementation of a judgment or a consent decree. Some judgments/decrees may not require (or may appear not to require) EEO expertise during their implementation, such as: ensuring that a sex harassment policy is written, that an EEO Officer position is created and filled, or that a plaintiff group comprises 20 percent of all new hires. Monitoring in instances such as these may be performed by the plaintiffs' attorney alone. However, what happens when the employer is not able to meet court-ordered goals 2

3 (sometimes in spite of the employer=s best good faith efforts)? What happens when the judgment/consent decree requires the employer to develop new, valid employment practices, procedures, and tests? What if it requires the employer to avoid adverse impact in certain selection processes? In these instances, the involvement of an EEO expert monitor is beneficial. Even if the judgment/consent decree did not originally provide for the plaintiffs' attorney to have an EEO expert monitor, this provision can be added, after the fact, with the court=s permission. Under some circumstances, defendants may stipulate to agree to expert monitoring to reduce EEO liability and facilitate the development of job related employment practices. The role of the expert monitor depends, of course, on the basis of the litigation, the case decision, and the court-ordered remedies. The following are examples of remedies for which an EEO monitor=s assistance could be valuable: (1) Remedy: The court orders the employer to submit, prior to its use, every selection device to be used for hiring, promotion, and transfer to the plaintiffs' attorney for review and approval as job related and valid. Monitor: For each selection device, the expert monitor can review the job analysis, selection plan, selection device, and supporting documents for the plaintiffs' attorney. The expert monitor can identify those which do not meet the technical requirements for validation and document why not. (2) Remedy: The court orders the employer to provide all data necessary for the plaintiffs' attorney to evaluate the adverse impact of each selection device which is used (e.g., applicant flow, availability percentages, utilization counts). Monitor: The expert monitor can identify what data is needed and in what format 3

4 and then evaluate it for the plaintiffs' attorney, using the most appropriate statistical analyses and providing findings and recommendations. (3) Remedy: The court orders the employer to provide all data necessary for the plaintiffs' attorney to evaluate the employer=s progress in meeting court-ordered goals (e.g., applicant flow, test scores, rater scores, eligibility lists, good faith efforts taken). Monitor: The expert monitor can identify what data is needed and in what format and then evaluate it for the plaintiffs' attorney, presenting findings and recommendations. (4) Remedy: The court orders that the plaintiffs' attorney may review any aspect of the administration of any practice, procedure, or test, including on-site inspections for adherence to the decree. Monitor: The expert monitor can assist the plaintiffs' attorney with these inspections by providing a technical review, based on EEO and statistical knowledge. An important area in which the expert monitor can assist is in identifying alternative practices, procedures, and tests that can serve the legitimate needs of the employer with less adverse impact than those used by the employer (even if the current devices are valid). If the employer refuses to adopt a proposed alternative that has less adverse impact and that will meet its legitimate needs, disparate impact discrimination can be claimed. 2 Many employers take the position that because they use validated employment tools, they have no responsibility (or liability) if those tools adversely impact protected groups. Under the Civil Rights Act of 1991, 4

5 this is not accurate, but it usually takes an expert in the EEO field to identify and present appropriate alternatives for the employer=s consideration. Objective of Using an Expert Monitor After litigation, often defendants go back to traditional practices, procedures, and tests, albeit with goals or quotas. Real change in the organization is usually not forthcoming. Sometimes the employer brings in consultants or new staff to help develop and administer new selection procedures. Such selection procedures may have as much or more adverse impact against the plaintiff group as did the unlawful ones. Other times the practices, procedures, and tests may be revised to make them job related, but without regard to the level of adverse impact they may create. So in the long run, the impact on the plaintiff group may be the same or worse than before the litigation, the only difference being that now the impact is caused by job related devices and is not unlawful. The impact on the plaintiff group, however, is the same -- limited or lost employment opportunities. An EEO expert monitor can work with the plaintiffs' attorney and the employer=s consultants or staff while the selection procedures are being developed to present options for reducing adverse impact using job-related techniques. A second typical scenario is that the employer, who is now required to meet courtordered goals for the plaintiff group, does so only via preferential treatment. The practices, procedures, and tests that caused the disparate impact against the plaintiffs still exist. Once the consent decree is spent and court review ends, the employer will revert to its past practices. The change in the employer=s practices is temporary. Working with the employer=s staff, the expert monitor can assist in making job-related changes, some of which, hopefully, the employer will 5

6 retain after the consent decree is over. These changes require repetition to take hold. Repetition helps in the acceptance and adoption process for long-term change. A third scenario is that the employer who is now required to meet court-ordered goals is unable to do so. It seems that there are simply not enough available and qualified plaintiff group members to meet the goals using traditional practices, procedures, and tests. In these situations, typically the employer has failed to identify and eliminate the barriers that limit the plaintiff group=s availability or to identify and use effective alternate employment practices with less adverse impact. The expert monitor working with the plaintiffs' attorney can identify the barriers. For example, when a goal is not met for a promotional job, the monitor may examine the composition of the feeder job; if the plaintiff group is under-represented in the feeder, the monitor will evaluate the impact of the selection procedures used to hire into the feeder to identify the entry-level barrier whose effects ripple up to the higher-level job. As another example, in evaluating barriers, the expert monitor may determine that although the plaintiff group is adequately represented in the feeder job, their representation in the pool of those applying for the at-issue job is disproportionately low. In this case, the plaintiffs' attorney may want to investigate the possible issue of Αdiscouragement that is restricting the plaintiff group from applying. After identifying the barriers, plans can be formulated by the monitor and presented by the plaintiffs' attorney to either validate or eliminate the barriers or, where appropriate, substitute alternate selection criteria that will serve the employer=s legitimate interests with less adverse impact. Before barriers can be removed, they must first be identified. Identifying barriers requires extensive database work (i.e., data specifications, data collection, checks and corrections, manipulation of data into usable structures, creation of programs to sort, 6

7 group, and analyze data, and so forth). In addition, identifying barriers requires statistical analyses and technical EEO evaluation of the practices, procedures, or tests causing the barriers. The objective of using an expert monitor is to help effect positive change in the organization that will help the class on an ongoing basis that will last beyond the court=s review period -- the life of the consent decree. The expert monitor accomplishes this by assisting the plaintiffs' attorney in reviewing the defendant=s compliance activities with two key missions in mind: Χ The development and proper administration of job-related practices, procedures, and tests, which have taken into account validation principles, and Χ The proposal of effective alternate practices, procedures, and tests and the alternate uses of practices, procedures, and tests that will reduce unnecessary adverse impact and result in improved employment opportunities for the plaintiff class. The monitor evaluates and advises as the employer: Χ Χ Χ Χ proposes desired practices, procedures, and tests; develops new practices, procedures, and tests; administers its practices, procedures, and tests; and uses the results of its practices, procedures, and tests. Proposed Practices, Procedures, and Tests When expert monitoring has been provided in a decree, typically one of the first assignments is the review of the practices, procedures, and tests the employer proposes using for 7

8 selection. The expert monitor reviews the employer=s proposed selection process, usually starting with the job analysis and selection plan, to make sure that EEO technical requirements, such as those in the Uniform Guidelines on Employee Selection Procedures, 3 are addressed. The job analysis must meet specific EEO requirements depending upon the type of validity evidence the employer is gathering. Typically, a job analysis will identify the tasks, work behaviors, work products, knowledge, skills, abilities, physical and other characteristics required for successful performance in the at-issue job. Frequency and importance ratings of the tasks and work behaviors are often included in the job analysis. Operational definitions of knowledge, skills, and abilities may be required. The relationship between the knowledge, skills, and abilities and the tasks or work behaviors of the job must usually be demonstrated. The job analysis is the foundation document used to determine whether the proposed practices, procedures, and tests are likely to be job related or valid. Subject-matter experts are needed to provide much of the information for the job analysis, as well as some portions of selection tools. The monitor can help ensure that the subject-matter experts selected are representative in terms of sample size, race/ethnicity, gender, experience, and assignment. The monitor can also help ensure that the subject-matter experts= role is appropriate as opposed to the role methodology experts should have in developing a selection process. After the job analysis, some sort of selection plan is needed. This document identifies the selection devices to be used and elements from the job analysis each will measure. The selection plan should identify the range of job-related weights each subject-matter expert identifies for each selection device. The plan may also identify desired job-related cutoff scores for some tests. 8

9 The monitor ensures that the selection plan reflects the job analysis and does not provide for measuring factors which are inappropriate for the method of validity being used. For example, content validity is an inappropriate validation strategy for measurement of traits or constructs not operationally defined. Another example is that tests should not include measurement of knowledge that is learned in a brief orientation. Sometimes, we can expect that employers will revert to traditional and familiar devices. If these devices adversely impacted the plaintiff group in the past, we can expect the same in the future. So, perhaps the most important role for the expert monitor is to help ensure that alternate job-related employment practices are considered during design of the selection process so that unnecessary adverse impact can be avoided. The 1991 Civil Rights Act has provided a unique opportunity for plaintiffs involved in a monitoring role with employers. 42 U.S.C. 2000e-(2)(k)(1)(A)(ii) provides that disparate impact discrimination is established where the employer is shown an alternate employment practice with less adverse impact than the practice used by the employer, which would serve the employer=s legitimate needs, and the employer refuses to adopt it. The term Αalternate employment practice in the EEO field can mean alternate practices, procedures, or tests or alternate uses of practices, procedures, or tests. An alternate employment practice must address the legitimate needs of the employer. Of course, in order for the employer to refuse to adopt the alternate employment practice, the employer first needs to be aware of the alternate employment practice prior to another one being used. Often employers are aware of optional practices, procedures, and tests and the general effects of these practices, procedures, and tests and still refuse to use ones with less impact. What better way to present an alternate employment practice 9

10 than in a monitoring mode, where the presentation can be made at an appropriate time and properly memorialized for later presentation in court motions, if necessary? Evaluating the job relatedness and the impact of prior selection processes is essential in forming the basis for professing alternative employment devices. If prior processes show a pattern of adverse impact and/or selection of fewer members of the plaintiff group than would be needed to meet a court-ordered goal, then the need to consider an alternate job-related process is obvious. Specific types of data are required to evaluate prior selection processes. Some past practices may have been quite effective; others may not have. Expert monitoring provides a vehicle for obtaining the most appropriate data from the employer with which to make such evaluations. The expert monitor makes data requests in writing via the plaintiffs' attorney. The employer is given a certain amount of time to object to any request. Disputes may go through a meet-and-confer process. Then the employer has a certain number of days to provide the requested data that survived the meet-and-confer process. The data that did not survive the meetand-confer process may need to have the court=s attention. If the employer does not respond in a timely manner, sanctions can be imposed. It is a good idea to specify sanctions in advance of requests. In this way the employer will know the cost of non-compliance in advance. Once the requested data on prior selection processes are obtained, the expert monitor can evaluate the selection procedures for their relative impact and degree of validity. Adverse impact analyses can be conducted to identify how well protected groups performed in comparison to others. If applicant test scores from prior selection procedures are provided, the expert monitor can statistically compare the test scores of those who were hired or promoted to ratings of their 10

11 job performance (after six months, one year, etc., on the job). Selection procedures with poor correlations to job performance and with adverse impact should be replaced. Such analyses provide valuable information for proposing alternate employment practices. Of course, the monitor can also first review the validity of the job performance rating system itself. If the rating system is not valid, then these ratings should not be used as a criterion in a correlation analysis. If these ratings also have an adverse impact, in addition to not being valid, then they should not be used at all. As an example, suppose an employer proposed that a written test of judgment replace its traditional interview in a promotional selection process. The expert monitor may be able to show that the interview had been a valid predictor of performance for the at-issue job and had no adverse impact. In this situation, if the employer had used the judgment test, and it adversely impacted the plaintiff group, the burden would be on the employer to defend its test (even if it were validated), because of its adverse impact. In this example, the employer was shown an alternate employment practice that was valid, but with less adverse impact, prior to administration of the judgment test. This is an example of an alternate test being considered for an Αalternate employment practice. Another example of an alternate use being considered as an Αalternate employment practice would occur when evaluating the prior use of a traditional, written job knowledge test, which an employer wanted to continue to use. Assume the expert monitor identified extreme adverse impact on several protected groups, also finding that the test failed to predict success on the at-issue job at all. The monitor could recommend that the written test be eliminated from the selection process. Under these circumstances, if an employer argues that a job knowledge test is 11

12 needed to ensure applicants have at least the minimally-required level of knowledge (a common argument when public safety jobs are involved), the monitor can propose alternate employment practices, such as a computer-based testing system that tests for job knowledge. With a computer-based knowledge test, applicants can keep taking alternate forms of the test on the computer until they pass at the minimum competence level. This approach is similar to testing for a driver=s license - applicants keep taking a different version of the test until they pass it; this demonstrates minimal knowledge to drive a vehicle. In this example, the computer-based testing/retesting process can minimize adverse impact, while addressing the legitimate needs of the employer. The examples above point out the importance of a selection plan identifying alternatives for employment devices that have a history of adverse impact, such as written tests. Some of these tests tend to adversely impact some minority groups, while some physical ability tests tend to adversely impact women. Alternatives may include a different form of administration of the same selection device, a different type of selection device, a different weight applied to the device, a different job-related cutoff score applied to the device, a different combination of weights and cutoffs within the job-related range, a different time limit for the device, providing practice exercises, test preparation manuals, or question and answer sessions prior to testing, and so on. The appropriateness of the employer=s desired minimum qualifications (MQ=s) often need to be addressed during selection plan design. Requirements that candidates for promotion have a specified number of years of education or experience can cause massive and unnecessary adverse impact. If an employer requires five years= experience in job X in order to apply for job 12

13 Y, the monitor can statistically evaluate the impact that MQ will have on the potential candidate pool. If the MQ will have an adverse impact on plaintiff group members, the monitor can recommend alternate MQs expected to have less impact. The monitor can also determine whether the MQ is valid; if it is not defensible, the monitor can recommend that the MQ not be used and perhaps propose specific job-related knowledge, skills, and abilities as MQ, to address the employer=s legitimate interests. Expert monitoring focuses on the key elements needed for reducing unnecessary adverse impact, while maintaining job-related practices, procedures, and tests. By focusing on these issues at the beginning of the selection process, great strides can be made in reducing unnecessary adverse impact. Development of Practices, Procedures, and Tests After the selection plan has been approved, the employer starts the development of the practices, procedures, and tests. Expert monitoring may include review and approval of the method to be used to develop the practices, procedures, and tests, as well as the content of the practices, procedures, and tests themselves as they are being developed and in final form. If the judgment or consent decree requires the employer to revise its employment-related record keeping system, the monitor can participate in establishing the specifications for the system to ensure it will address relevant EEO requirements. If the judgment or consent decree requires the employer to implement job-related employment practices, the monitor is most useful in this situation reviewing selection devices during their development, rather than after. In this way, some problems can be spotted early, corrective action can be taken immediately, and 13

14 massive, time-consuming rework later can be eliminated. For example, sometimes a test that sounds clever and promising is presented in the selection plan; however, during development, the expert monitor may discover that the Αnew test is nothing more than another form of a traditional written test, complete with its historical adverse impact. Also, tests under development may be written at a language level exceeding the requirements of the job. This may cause additional unnecessary adverse impact. A common problem with a job knowledge test is that it includes questions whose answers can easily be looked up in reference materials on the job and need not be memorized and subject to immediate recall. The monitor can ensure that such items do not remain on the test. Early detection is vital for preventing these problems and reducing unnecessary adverse impact. During the development of selection devices, the expert monitor can examine small details that might not otherwise be noticed. For example, an employer may develop a physical ability test, part of which requires applicants to carry a wooden ladder. However, a close look might reveal that wooden ladders are being phased out with conversion to aluminum ladders. The wooden ladders require much more upper body strength than the aluminum ladders, causing unnecessary adverse impact against women. Monitoring the development of practices, procedures, and tests can improve their usefulness for the employer, alert the plaintiffs' attorney to upcoming problems, and provide a process for addressing severe problems early. The process also presents another important opportunity for presenting alternate employment practices. 14

15 Administration of Practices, Procedures, and Tests After the practices, procedures, and tests have been developed, expert monitoring can be very helpful during their administration. In one situation, the employer had seated several thousand candidates to take a written test. This was a Αpower test designed to measure the amount and level of candidates= job knowledge, not a Αspeed test of how quickly the knowledge could be applied. As a power test, the candidates were supposed to have the opportunity to answer each question. However, about 20 percent of the test takers did not have enough time to answer all the questions. Unfortunately, a very disproportionate number of the test takers not completing the test were minorities and women. The unjustified, artificially restrictive time limit for the written test caused unnecessary adverse impact. Expert monitoring of the test administration could have avoided this problem. Sometimes instructions have not been carefully tested and can result in applicants misunderstanding them or test administrators failing to consistently apply testing requirements to all applicants. Expert monitoring during test administration can help avoid these situations. Use of Practices, Procedures, and Tests (Including Alternate Uses) After development, administration and scoring of the selection procedures comes one of the last opportunities to reduce unnecessary adverse impact. Often the monitor is able to conduct rater bias and rater reliability analyses on the results of selection tools such as assessment centers, performance appraisals, or interview panels in order to identify possible biased raters or unreliable devices. These results can then be more closely checked and biased raters eliminated from the process. Employers could do these 15

16 calculations, but often do not. Biased raters, whether intentionally biased or not, can create unnecessary adverse impact. By checking the work performed by the employer, unnecessary adverse impact can be minimized. In one situation, an employer had scored the tests in a selection process, then attempted to convert the raw scores into standardized scores, but improperly conducted the mathematical process. The weight intended for each test was not the weight actually applied to each test. Unnecessary adverse impact was the result. This error most likely would not have been caught without expert monitoring. In another monitoring situation, an employer proposed a set of weights for the tests used in a selection process, based upon the average of subject-matter expert input. However, a review of the data showed that a slight variation of the weights, still clearly within the range of weights established by the subject-matter experts, would substantially reduce adverse impact for some protected groups. Unnecessary adverse impact could again be avoided, if the slightly modified weights were used instead. The expert monitor can identify the set of weights within the jobrelated range provided by subject-matter experts that is most likely to minimize adverse impact. In a third monitoring example, after scoring the written test, the employer proposed a minimum competency score based on the ΑAngoff method as applied in U.S. v. South Carolina (434 US 1026 [1978]). While the consent decree was for a plaintiff class of women, women were not adversely impacted by the proposed cutoff score; however, African Americans and Hispanics were. The expert monitor proposed a different cutoff score just a few points lower than that which the employer wanted to use. The alternate cutoff score would eliminate the adverse impact against Hispanics. The monitor=s proposed cutoff was within the standard error of measurement, 16

17 consistent with the U.S. v. South Carolina methodology, but applied one additional component of the approved methodology. The court agreed with the alternate cutoff proposed by the monitor. Because of this, unnecessary adverse impact was avoided for Hispanics. Sometimes civil service rules appear to prevent the use of certain alternate employment practices. Motions to bring these matters to the court=s attention may be necessary to deal with these artificial barriers. For example, a civil service rule might require that rank-ordered lists be used for selections, when rank-ordered lists often create unnecessary adverse impact. Unless the tests whose scores are used to create these rank-ordered lists are perfectly valid and reliable, fractional differences in candidates= list scores are meaningless. Grouping candidates by scores which are statistically substantially equal based upon the reliability of the test and its standard deviation can reduce unnecessary adverse impact, especially when the grouped score (or banded score) is combined with another job related practice. The expert monitor can conduct the necessary statistical analyses to identify groups of scores which are substantially equal. A civil service rule might require a 70 percent cutoff score be used on all tests, but subject-matter experts might identify 67 percent as a minimal competency score for a specific test. The 70 percent cutoff may serve to perpetuate unnecessary adverse impact, while the 67 percent cutoff can serve the employer=s legitimate needs and reduce unnecessary adverse impact. A very important role in expert monitoring is to identify civil service rules that act as artificial barriers and assist the plaintiffs' attorney with options. The expert monitor can work with the plaintiffs' attorney at each step in the selection process and offer alternate employment practices or alternate uses of employment practices that serve the legitimate needs of the employer and reduce adverse impact. 17

18 Other Areas of Assistance Inadequate External Applicant Pools. The monitor can evaluate the effectiveness of the employer=s recruitment process by statistically analyzing the actual applicant pool versus the expected applicant pool, using Census occupation data and other data that might be available. When the results of the employer=s recruitment are less than expected, recruitment techniques can be modified to attract more plaintiff group members to the applicant pool or barriers eliminated that artificially restrict the applicant pool, such as a Αpromotion from within policy. Inadequate Internal Candidate Pools. Sometimes employers claim that they are unable to meet their court-ordered promotion goals because there are too few candidates available from the plaintiff group. The expert monitor can assist in this area by investigating the legitimacy of this claim and proposing solutions to the problem, if it in fact exists. For example, the monitor may review employment activity to identify the characteristics of the selection processes of jobs in which the goal has been met to those in which the goal has not been met. Where there appear to be sufficient potential candidates available, but they are not applying, the monitor might conduct surveys of employees to identify the reasons and propose some changes. The SWAT team of one employer was having difficulty recruiting women; however, a demonstration day that reviewed the job and training in some detail encouraged some women in this situation. Training. The monitor may provide training to the employer=s personnel staff in any or all of the areas covered by the judgment or consent decree. For example, the monitor might train staff in conducting accurate adverse impact analyses or in developing valid selection procedures. In a less direct form of training, the monitor might provide the employer=s personnel with written instructions and checklists to assist them in either of these tasks. The result, in any case, 18

19 can be a more cooperative working arrangement between monitor and employer, less reliance on the monitor, the employer Αbuying into the desired system, and fewer disputes going back to the court for resolution. Resources Needed for Expert Monitoring The costs of expert monitoring are very difficult to estimate because the scope of work is so much dependent upon the employer=s actions (or inaction). If the employer does not cooperate in furnishing data or accepting alternate employment practices, for example, the monitor and plaintiffs' attorney will probably become much more involved than when a close working relationship exists. The monitor may have to travel to the employer=s site for numerous meetings or prepare declarations for submission to the court to settle disagreements. One employer may want the monitor to train its staff on certain topics, while another does not. Some employers will have knowledgeable people work on developing valid selection devices and actively consider alternate employment practices, thus minimizing the monitor=s review time. Another employer will fail to submit materials (requiring the court to intercede) or submit such poorly-developed materials that monumental amounts of the monitor=s time are required to identify the problems and required corrections for the employer=s revision. Another factor which makes estimating the cost of a monitor difficult is that the monitoring role can change as time goes on. Monitoring can start with one classification or one area of employment, but as additional facts are uncovered and brought before the court, additional orders are issued, and the monitoring role may expand. For example, monitoring might begin with one promotional job, but facts are uncovered which identify discrimination at 19

20 the entry-level job involving the same protected group that won the suit at the promotional level. Under these circumstances, expert monitoring may be extended to include the practices, procedures, and tests used for entry-level hiring, because the entry-level practices have caused a Αbarrier for the promotional opportunities. In addition, it might be found that certain assignments held at the entry-level have substantial weight in determining who will pass the promotional selection process. Under these circumstances, expert monitoring may be expanded to cover the practices, procedures, and tests for those assignments as well. The level of expert monitoring desired by the plaintiffs' attorney can guide the costs. However, costs undoubtedly will rise if disputes between the parties result in litigation, which involves the monitor in declarations and depositions. Expert monitoring costs can be drastically reduced if a cooperative arrangement is consistently fostered and the employer aggressively seeks to implement alternate employment practices. The costs of expert monitoring should be paid by the employer as part of the costs of work undertaken by plaintiff counsel in connection with implementation of the judgment or consent decree. A separate order by the court should be considered as the vehicle. The order should cover the process of billing, the process of having the plaintiffs' attorney review the bill monthly, the process and time limits for the defendants to review the bill, how the defendant can object to parts of the bill, time for payment, interest charges for nonpayment in a timely manner, penalties for contempt (when the employer uses nonpayment as a vehicle for objecting to the monitor=s actions or advice), and so forth. Monthly bills submitted to the plaintiffs' attorney by the expert monitor should identify for each project approved by the plaintiffs' attorney, the day each staff member worked on a 20

21 project, who performed work, and for each person their billing rate, the activity or task on which they worked, the number of hours worked, and the specific work performed. If costs of expert monitoring are a major concern for an employer, then the employer should be motivated to look hard at the practices, procedures, and tests proposed or used to find job-related ways to minimize unnecessary adverse impact and consistently foster a relationship with the monitor. An employer following a path of resisting requests for information, without serious consideration of alternate practices, procedures, or tests or alternate uses of the practices, procedures, and tests, will run up high monitoring bills and litigation costs. The expert monitor=s role should be continued until specified objectives are met consistently for a certain limited period of time. Some Benefits of Expert Monitoring Χ Finding job-related ways to reduce unnecessary adverse impact. The working relationship that is mandated between the monitor and the employer provides the monitor with opportunities for identifying the methods that most likely will and will not be possible. Χ Being an agent for change. Monitoring provides a way to take the employer through a new process or procedure, which may at first be totally unacceptable to the employer. However, as the process or procedure becomes understood and more acceptable, sometimes it is even appreciated. The opportunity for repetition facilitates the process of change. Repetition can help change organizational attitudes regarding unnecessary adverse impact and alternative employment 21

22 practices. Often the first or second attempt does not work well, but does lay the foundation for the next attempt. Repetition helps the educational process. Ideas presented that are quickly dismissed one year, become opportunities for acceptance in another year. Χ Providing a platform for presenting alternate employment practices. Those which are accepted reduce unnecessary adverse impact. Those refused provide a basis for a new finding of disparate impact under the 1991 Civil Rights Act. Χ Providing an opportunity for the plaintiffs' attorney to better understand the employer=s inside workings. This improves the chance of making a positive difference. 1 Class Monitor, Bouman v. Block, No. CV (RMT) , and President of Biddle & Associates, Inc. ( To contact Mr. Biddle directly, dickbiddle@hotmail.com 2 42 U.S.C. 2000e-(2)(k)(l)(A)(ii) CFR 1607; CCH Employment Practices Guide