A method for screening new hires that counts the likes of Google among its adherents may create some fertile ground for future employment lawsuits.
That’s the opinion of two attorneys writing the New York Law Journal this week.
The attorneys, Robert Ottinger and Carrie Kurzon, of The Ottinger Firm in New York, argued in their article that companies using “biodata” tests may become targets of lawsuits based on discrimination laws.
According to the pair, “biodata probes deep into an individual’s background and consists of a person’s life and work experiences, as well as beliefs, values, opinions and attitudes.”
Biodata is, they continued, “presumed to be related to personality structure, personal adjustment or success in social, educational or occupational pursuits.”
“Once companies begin using biodata systems to hire employees, legal challenges can be expected to follow,” the pair wrote in the article entitled “Are Biodata Tests a New Frontier for Employment Litigation?”
Biodata Use Rising
Biodata litigation may gain momentum as the practice becomes more transparent, Kurzon told the E-Commerce Times.
“It’s something we’re going to see a lot more of in the next few years,” she said.
“I don’t think potential employees grasp what biodata is yet and understand there is a risk of discrimination and there is a recourse for it,” she added.
Biodata surveys have been around for decades, but they fell out of favor when anti-discrimination laws began appearing on the books, according to the attorneys.
Some companies feared the tests could be seen as discriminatory, they noted; others were concerned that the tests created privacy issues.
However, the tests have started gaining popularity once again as increased competition forces companies to look for new ways to hire more productive employees, they maintained.
“Currently,” they wrote, “the use of biographical surveys similar to Google’s new system is on the rise.”
Works for Google
Google’s system is the leading model for the new wave of biodata testing, the attorneys said.
The system requires job applicants to fill out an elaborate online survey that examines their personality, behavior, attitudes and other personal details going back to high school. The survey covers a large range of topics from whether or not the applicants like to work alone or in groups to if they like dogs, ever published a book, started a club in school or set a world record.
“While no one can say with certainty whether the use of biodata is better than the traditional interview process,” the lawyers wrote, “it does seem to work for Google, which purports to have less than four percent employee turnover.”
When contacted by the E-Commerce Times for comment about its hiring practices, Oscar Shine, a spokesperson for Google replied in an e-mail, “We don’t really have anything to share on this subject, so I’m afraid we can’t be very helpful.”
Companies at Risk
It’s not uncommon for companies to remain tight-lipped about their hiring practices, especially if they’re concerned about litigation, Kurzon said.
In the past, an exception to that rule had been Google, which touted its new biodata hiring method in the New York Times in January.
“From my research,” Kurzon said, “companies don’t seem to be that forthcoming with their policies and their hiring practices, probably for that exact reason [litigation], other than Google, who has made it public that this is what they’ve been doing.
“I don’t think companies are too inclined to provide that information because it does put them at risk,” she added.
The intricacy of the questionnaires and breadth of the information — some of it from a candidate’s distant past — gathered from them make biodata testing riskier than other hiring methods, she explained.
“The theory is that the past is a good indicator of the future, but it’s certainly much riskier than the standard interviewing practices most companies have been utilizing,” she asserted.
“It’s riskier because it’s more subjective,” she added. “There’s a lot more room for finding one type of person or excluding one type of person.”
It’s also riskier because it can be harder to prove the relevance to job performance of some of the oddball questions in biodata questionnaires.
“Courts have repeatedly held that a selection device should measure the person for the job, not the person in the abstract,” the attorneys wrote in their article.
“If a job applicant’s past is examined,” they continued, “the use of biodata can arguably measure a person in the abstract, or subconsciously favor a protected class, thereby subjecting the company to liability.”
Use of biodata will definitely lead to more litigation, Bob Gately, a principal in Gately Consulting, an employment testing firm in Hopedale, Mass.
“You can’t show a correlation between what you did as a 13-year-old entrepreneur and job success at a job today,” he contended.
“I find Google’s approach laughable,” he added.