Mock Trial: Are Job Descriptions Illegal?

If job descriptions aren’t illegal, they should be.

Let’s hold a mock trial. You’re one of the jurors. We don’t need unanimity here, a mere super majority will do. Here’s a link to the public survey so you can be involved and register your verdict, and see the results. But before you vote, you must hear all of the evidence.

Let me first state my rather obvious bias and claims in my opening statement: there is no doubt in my mind that skills-infested job descriptions prevent companies from hiring top performers and limit their ability to hire diversity candidates. Furthermore, managers and recruiters who rely on these are doing their companies a great disservice. I will prove this during this trial by providing convincing evidence to the following:

  1. Job descriptions define average people, not the best performers.
  2. Diversity candidates often have non-traditional experiences and, as a result, are wrongfully excluded from consideration.
  3. It’s what people do with their skills and abilities that should be used to judge their performance, not the amount of skills and experiences they possess.
  4. Job descriptions don’t define the actual job. They define the person in the job, and the criteria used is suspect at best, since there are a great many people who can excel in the job with a different mix of skills and experiences.
  5. There is no law that says you must post boring job descriptions.
  6. Job descriptions violate the Uniform Guidelines.
  7. If job descriptions aren’t used for internal promotions, why should they be used for external screening and selection?
  8. There is no scientific basis for the creation of the these job descriptions.
  9. Competency models are only slightly better than job descriptions in minimizing the core problems involved in using job descriptions.

If you’re not seeing or hiring enough top performers or highly-qualified diverse candidates, the root cause of the problem can be attributed to the use of skills-infested job descriptions. Following is a quick summary of the proof to be presented during this trial. Witnesses will be called for each phase.

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  1. Top performers tend to get promoted more rapidly than under-performers. As a result, after a few years, they have less overall experience than the average person in the same job. If average years of experience and skills is used as the cut-off for screening when hiring from the outside, then the best people — those in the top-half — will automatically be excluded.
  2. Diverse candidates tend to have non-traditional experiences, yet can still be top performers. Traditional job descriptions don’t account for this type of equivalent or comparable experience. On this point alone, job descriptions are discriminatory and should be banned, unless it can be proven that the absolute values defined for the KSAs are essential.
  3. In cases where adverse impact has occurred, the Uniform Guidelines requires that the job selection process to be validated. Part of this includes a job analysis and proof that the assessment process accurately predicts on-the-job performance. A job analysis is a formal study of what the actual job entails and what it takes to successfully perform the job. A job description is not a description of the job; it’s a description of the person in the job, and therefore not acceptable proof.
  4. The Knowledge, Skills and Abilities required for job success are derived from the job analysis. Three points will be made during the trial itself to demonstrate how KSAs are misused. First, most people who write job descriptions, including a listing of the KSAs, don’t conduct a proper job analysis first. Second, while KSAs are needed to perform the job, these are dependent variables, and having these KSAs doesn’t mean a person can do the work successfully. This is a form of the logical argument “asserting the consequent: just because A requires B, doesn’t mean having B determines A.” Third, the Obama administration is now formally undergoing a “Hiring Reform” reform initiative questioning the value of KSAs and how they’re assessed for these same reasons.
  5. Competency models are weak substitutes for KSAs and job descriptions for similar “asserting the consequent” logic flaws. For example, just because someone has the important competency labeled “drive, self-motivation, or initiative,” doesn’t mean it can be universally applied in all situations. Being driven could be a result of the manager, the culture, or the actual work itself. It will be proven in trial that unless a competency can be directly tied to the job analysis, measuring it generically has no validity from an assessment standpoint.
  6. A job analysis that lists a series of performance objectives required for job success eliminates the need for traditional job descriptions and the use of absolute KSAs for assessment purposes. Candidates can then be evaluated by obtaining a comparable accomplishment for each required performance objective required.
  7. There is no legal requirement to post boring job descriptions or use a one-step hiring process to advertise job openings. For example, the OFCCP would not find fault with the following two-step hiring process. Step one: a creative posting highlighting just the challenges and opportunities, listing few, if any, requirements. Step two: everyone who applies gets an email describing the job challenges and requiring the person to submit a one-page write-up summarizing their most comparable accomplishments.
  8. The rules have changed. There are few traditional job experiences anymore, so why continue to look for a declining population of people with traditional experiences. The economic bust, generational differences, the globalization of the workforce and the relationship between the employee and the employer have undergone such massive changes, that relying on the relic of the past — job descriptions — is comparable to using the telegraph to send text messages.
  9. Top people, including diverse candidates, don’t decide to apply for a job, or compare multiple offers, based on the job description. They are more interested in the challenges and growth opportunities, the leadership qualities of the hiring manager, the company culture, and overall impact they can make. For this reason alone job descriptions should not be used for advertising purposes. Job descriptions are the lazy way out. Managers use them to replace thinking and job boards use them since they’re formulaic and easy to scale. Unfortunately they cause more harm than good.

Since we haven’t gone to trial yet, and this list is only a summary of what we’re going to prove during the actual trial, let’s stop for a moment and get your initial reaction.

Based on the above, do you think I would lose at trial or could a make a convincing case that traditional job descriptions, if they’re not outright illegal, should be banned? The third option is even if they are not illegal, traditional job descriptions do prevent companies from hiring people in the top half and minimize their ability to build a diverse workforce. Here’s a link to cast your verdict, and here’s a link to the results. As far as I’m concerned it’s an open and shut case, but don’t hesitate to add your jury room comments.

Lou Adler is the CEO and founder of The Adler Group – a training and search firm helping companies implement Performance-based Hiring℠. Adler is the author of the Amazon top-10 best-seller, Hire With Your Head (John Wiley & Sons, 3rd Edition, 2007). His most recent book has just been published, The Essential Guide for Hiring & Getting Hired (Workbench, 2013). He is also the author of the award-winning Nightingale-Conant audio program, Talent Rules! Using Performance-based Hiring to Build Great Teams (2007).

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23 Comments on “Mock Trial: Are Job Descriptions Illegal?

  1. Yes, they (Job specs) should be banned Lou… I have been studying your stuff for years, and your process works…. The day HR/Recruiting DEPT. Behave like reputable 3rd party search firms, is the day many TPR will need to go “in house”..

    The rules have changed….

    Best, Brian-

  2. Hi Lou-

    Great article! Traditional job descriptions don’t give us the full picture of the role or always reflect the true candidate we need. What would you suggest we use instead?

    Thank you!

    Sara Reno
    Corporate Recruiter, RGIS, LLC

  3. I disagree with your comment about banning them, but I believe we share the same desired end result and that is performance improvement and opportunity to unleash the potential of all employees. What I would suggest for further consideration is a need for alignment with:

    1. Performance and talent appraisals
    2. Organizational strategies
    3. Expected behaviors

    The last one, expected behaviors, needs to be clearly articulated so that everyone know what punctual means, professional courtesy, etc. The problem is vagueness and the inability to return to these descriptors and update them on a regular basis to reflect new skills and other factors to be considered.

    P.s. Maybe this will happen when the C-Suite or C-Level executives have this position: Chief People Officer

  4. Where is the option to disagree completely and state that you can find top performers through the use of job descriptions? I don’t believe this to be true, but don’t find it to be a fair vote when there is no option to disagree with you.

  5. Ah!– the vision of a wide-eyed Lou, delivering in loud machine gun style during high tea at The Empress. Sorry– just flashed across my mind. Lou is once again in fine form. Head in the right place; fingers, well, not so much. IMNSHO, he is bang on in criticizing common job description practices. Communicating the minimum candidate training, experience, and credential requirements is THE ONLY thing that most job descriptions accomplish, if that. They do little or nothing to clarify the person characteristics of performers who deliver superior value across the array of typical challenges facing people employed in the given role. And they specifically avoid spelling out what new hires need to accomplish within the first 90-180 days to solve the 1-3 most pressing challenges that led to their being hired in the first place.

    But banning job descriptions would be like banning all medicines because many are ineffective or have side effects that make them worse than doing nothing at all. So we didn’t do that. Instead, we created standards that medicines have to meet, administered by the FDA. Clearly that has not created a utopia for pharmaceuticals either, but things are better than the days of Lightening Lou Addled—the elixir dealer. I just happen to be on a SHRM task force, headed up by Gerry Crispin, focused on creating national (and perhaps international) standards for HR practices, and specifically job descriptions. We need a clear articulation of what best practices in job descriptions should be. I welcome all prescriptions and will do my best to convey them to our group.

  6. To Sara Reno,
    Job Descriptions should be replaced by Skills Inventory. British Petroleum (BP) has stopped using Job Descriptions.

  7. Let me think about this one… Agree with a person who has billed out Millions, Written books, Audio/DVD’s, Has Multiple streams of income, “Earned” distinction in our circles as a “thought leader”, OR listen to the folks unwilling to adapt to predictable process’s that have been proven? (Status Quo)….

    I take LOU ADLER!

    Best to ALL, Brian-

  8. Regarding the fair vote option and the lack thereof: this is a trial and the judge only gave the jurors those three options.

  9. Squash the skills inventory idea, it’s not much better than a JD. Instead use a performance inventory – summarizing each employee’s accomplishments – span, scope, impact, budget, quality, complexity and the like – or integrate the skills within the accomplishments.

  10. In addition to agreeing with all of Lou’s points, I will add that frequently job descriptions don’t even accurately portray the job even in their minimalist, “average” versions. They don’t even define “average” performance; they define duties with no specificity of a performance level. In the last two weeks, I’ve interviewed more than a dozen individuals on a project. The reactions have been consistently “this isn’t even close to describing the job” and embarrassing laughter about how the published job description doesn’t even make reference to the most important part of the job.

    I also believe it is important not to try and just “fix” existing job descriptions. I’m frequently opposed to changing names and/or titles without a valid reason. But the very term “job description” is so engrained in practices, testbooks, etc. that the only way real progress is going to be made is to eliminate the concept and the term.

  11. Do individuals get hired or not because of a Job Description? I don’t believe that is the case. I believe that a Job Description is an outline. It is an overview, the “Cliff Notes” of a job. Just as you wouldn’t get the full impact of a book by reading an outline, you won’t get the full impact of a candidate by comparing them to the Job Description.

    That is why we interview people, 1st the hiring manager, then after we understand what they want (and that understanding is where many in HR get it wrong) we interview. Using JUST the job description no one would get hired. I don’t know of any interview situation where someone went “by the letter” through a job description in an interview scenario to eliminate or justify hiring a candidate for a job.

    We may as well eliminate all titles too – most are not in any way descriptive of the persons duties or responsibilities.

  12. I support the performance based model of interviewing but struggle with some of the implementation.

    LOU- What companies are currently doing a god job with job postings?

  13. reward improvement should be based on skill improvement. if skill is improved, the performance should be better.The skills inventory will be used as a basis for evaluating skill improvements. What do you think guys? appreciate your comments. thanx
    umar (Jakarta)

  14. Umar – under your plan anyone who went to training would get rewarded. Why not reward people for achieving successful results instead? This is how people get promoted in most companies.

  15. Hi Clive – the companies that are doing a good job of advertising are those that are creative and not following the crowd. My next article will be on “banning boring job postings”

    Re: defining performance up front – if you ban job descriptions, managers will be forced to find a substitute – clarifying expectations and success up-front. As a result, performance would improve, satisfaction would increase and turnover would decline. That’s why the “banning” part is essential, because recruiters are reluctant to “fight” the practice of using job descriptions and just follow outlived practices under the guise of “that’s the way we’ve always done it” and/or “you’re the recruiter, you’re supposed to know the job!” admonition.

  16. I very much enjoyed hearing all of the evidence you presented, Lou. You made some very interesting points indeed—and I respectfully disagree with most of them. This is not because I think your evidence is baseless, necessarily, but because of the way the evidence is framed. Perhaps a better title for your Mock Trial would be: Are Poorly-constructed and Improperly-used Job Descriptions Illegal? Yet something tells me that a reasonable jury would still render the same verdict: ‘it depends’.

    For the sake of brevity, I will attempt to respond to your points as concisely as possible:

    Job descriptions define average people.
    Poor job descriptions may define average people. Good ones are based on empirical research, and do not define people at all. They define a sample of KSAs required for success on the job, and the duties or tasks performed. A useful job description also includes minimum qualifications, for identifying minimally qualified candidates; therefore, those in the “top-half” actually would be identified in the initial candidate screening process assuming you’ve taken an empirical approach to developing the minimum qualifications. Valid job-related assessments would then be used to identify those in the “top-half” later in the process, after the initial screen.

    Diverse candidates may be wrongfully excluded from consideration.
    Properly constructed job descriptions should list the critical KSAs required for successful performance on the job, which may be acquired through all types of experience—traditional or non-traditional. That said, poorly constructed job descriptions are not discriminatory in and of themselves. It is the minimum qualifications contained within them that may be discriminatory if they are not job-related and they result in an adverse impact against a protected group.

    What people do with their skills and abilities should be used to judge performance.
    Don’t we “judge” performance after we hire someone? I don’t follow the logic here, with respect to initial pre-selection screening. Shouldn’t we be attempting to predict something at this stage? Nevertheless, I reiterate the importance of using a thorough job analysis as a foundation for creating job descriptions.

    Job descriptions don’t define the actual job.
    I agree that most people who write job descriptions, don’t conduct a proper job analysis first! Good job descriptions do define the actual job. Bad ones do not!

    Competency models are weak substitutes for KSAs.
    Agreed! Competency models pale in comparison to job analyses that identify the job demands and requirements!

    There is no scientific basis for the creation of job descriptions.
    Many job descriptions are not, in fact, based on data-driven research. However, there are well-established scientific methods accepted by both researchers and practitioners alike.

    There is no legal requirement to post boring job descriptions.
    Correct. However, some companies—those under the OFCCP’s jurisdiction, for example—are required to post a position’s basic qualifications. Basic qualifications must be objective, non-comparative and job-related. Such requirements can be leveraged from a properly conducted job analysis. If basic qualifications do not meet these requirements, and there is evidence of adverse impact against a protected class, then agencies such as the OFCCP would find fault with such a process.

    Job descriptions violate the Uniform Guidelines.
    Job descriptions do not, in and of themselves, violate the uniform guidelines. However, minimum qualifications contained within job descriptions, that are not job-related and consistent with business necessity, may be deemed discriminatory… but only if there is evidence of adverse impact.

    If job descriptions aren’t used for internal promotions, why should they be used for external screening and selection?
    Job descriptions which contain minimum qualifications are typically used for initial pre-employment screening purposes. Although they may not be used for internal promotions, the decision to promote from within should still be based on merit using the results from a job analysis. Yes, the same job analysis used to assist in the selection of new hires for a particular position.

    In conclusion, I find much of the evidence presented to be non-compelling. Job descriptions are not illegal, even if they are bad. However, some of the information contained within job descriptions—such as minimum qualifications—may be illegal, but only if they are not job-related and they have adverse impact against a protected group. That same logic can be applied to anything that is used to screen job-seekers. But juror beware: not screening job-seekers can still be discriminatory! In fact, not screening is more likely to lead to discriminatory outcomes because it opens the door to human intuition. Believe it or not, people are not very good at using intuition to predict behavior such as job performance. The goal? Select the best candidates for the job. The means? Dump the obviously terrible. Keep the good. Supplement validity evidence where necessary.

  17. D Morgan – I sorry to say your evidence would be thrown out during the trial and dismissed by the jury as incorrect – just a few points, based on a few minutes look –

    1. There are many people who have the KSAs you require that are not in the top half – especially those that aren’t motivated to do the work or if they have a terrible manager.
    2. Most of the people who get promoted internally don’t have the requisite KSAs for the new job – yet they wind up being top performers – somehow the KSAs miss this fact – all of these people who be excluded from consideration if screened on KSAs.
    3. Your OFCCP insight is factually wrong – I’m working with the #1 lawyer in the country on this – there is absolutely no requirement to list qualifications in your postings for OFCCP jobs, especially if you use a two-step app process
    4. How can you possibly say that KSAs don’t define a person? – you’re defining a person who has these KSAs.
    5. What about OTJ training?

    As you know in trial any flaws in your evidence would taint your whole argument. Regardless of the outcome of the trial – which you’d lose – (I probably would, too) – it’s an important discussion. In my opinion KSAs are misleading. My best candidates have lots of A and enough K&S to produce outstanding results.

    More important if you can find people who have delivered comparable results you’ll find they have different KSAs – which is the key point of my argument and the logic flaw demeaning your KSA as the dependent driver.

  18. Thanks for the insight, Lou! Fortunately, I’m not a lawyer presenting any evidence, or giving legal advice, just a well-informed juror giving my opinion.

    A couple of quick thoughts:

    1. I think the key element missing here is the all-important “Other Characteristics” factor not discussed. A good job analysis does in fact look at KSAs…and Os. The Os can be used to define more latent constructs such as personality characteristics, motivation, etc. Although these would be tapped into at later stages in the process, folks who have the KSAs, but not the Os, would still fall out regardless (using valid selection instruments).
    2. Again, the Os are importantly missing from our discussion. However, I’d be very interested in reading any research you have available demonstrating that most of the people who get promoted don’t have the requisite KSAs, yet still wind up being top performers.
    3. I’d encourage your #1 lawyer to revisit their 41 CFR 60-1 regs. Although there is no requirement to post all job openings, if a contractor does post, they must advertise the basic qualifications according to the Internet Applicant FAQs found here http://www.dol.gov/ofccp/regs/compliance/faqs/iappfaqs.htm#Q3BQ which state verbatim: “Under the Internet Applicant rule, basic qualifications need to be advertised to potential applicants or, if the contractor does not advertise for the position, need to be established in advance by making and maintaining a record of such qualifications.” With regard to the two-step process mentioned, recall that the Uniform Guidelines state that “the individual components of the selection process should be evaluated for adverse impact” (that’s each step!).
    4. Never said KSAs don’t define a person. I did say that job descriptions alone do not define people. KSAOs do in fact describe the characteristics or competencies of successful workers.
    5. OTJ–good point! But a good job analysis would identify those job requirements or demands that could be learned quickly or easily OTJ. Therefore, you should not be screening job-seekers on those dimensions.

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