I don't think about it at all, and for good reason: nothing that our process does could possibly be more risky than the crapshoot process other companies use. To wit: I know for a fact that my process isn't going to be dumb enough to ask a woman whether she's going to be able to manage her child care responsibilities and still be able to answer emergency work calls.
The danger comes from the fact that courts generally give deference to ad-hoc processes, whereas systematic processes are inherently suspect. That's why interviews are fine but IQ tests are legally suspect.
As another example in this general line of thought, compare Grutter v. Bollinger and Gratz v Bollinger. Point-based racial discrimination is illegal, but "holistic" "individualized" processes where race is just a "plus factor" are legal. (Only discrimination in favor of non-Asian minorities, of course.)
I agree that this legal doctrine is insane.
Completely tangentially, since you mentioned relevant questions which are illegal to ask, I'd love to see an economic analysis of this topic. Specifically, the classical Akerlof lemon market paper assumes a complete inability to measure quality. But in the hiring market there are only a few dimensions for which one is unable to measure quality. That complicates the analysis significantly, so I'd love to gain some intuition on the topic.
The point of Griggs vs Duke Power is that a work sample test would probably need to be "reasonably related" to the job at issue, if it has a disparate impact on minorities (meaning minorities pass at a lower rate). I have no idea how one proves in court that a test is "reasonably related", because I'm not a lawyer :-)
Yeah, I'm familiar with it; my point is that the ad-hoc procedures companies use in place of work-sample testing are much more perilous. I've been a witness to more than one legal action that resulted from them.
