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The OUCH Test

 

John Hendon

President and Senior Consultant 

© 2007 The VMP Group, LLC

 

This month I would like to introduce you to a simple thumb rule that I have used for most of my life as a manager of people in a wide variety of jobs. It is called the OUCH Test. 

 

You should use this test whenever you are contemplating any action that involves your employees. For example you should use it when hiring new people, promoting employees, deciding whether or not to give someone a raise, analyzing disciplinary action against an employee, or in any other job related action.  OUCH is, of course, an acronym. The acronym stands for the following:

1. Objective – Is the action objective or is it subjective? What’s the difference? Something that is objective is factual, based on cognitive knowledge or quantifiable values. Something that is subjective is based on my emotional state or how I feel in a certain circumstance, not on cognitive knowledge. We should make our employment actions as objective as we possibly can in all cases. Now, this does not mean that we can always make our employment actions 100% objective - we simply need to make them as objective as we possibly can.

2. Uniform in application – is the action being uniformly applied? In other words, if I apply an action in an employment situation am I applying that same action in all cases of the same type? For example, if I have one applicant for a position take a written test, I need to have all the applicants for that same position take the same written test, under the same conditions, to the best of my ability.

3. Consistent in effect – consistent in effect is a little bit more difficult than the other three. What we mean here is that the action we take cannot have an inconsistent effect on a legally protected group. There are many protected groups in United States law. We have to try and make sure that we don’t affect one of these protected groups disproportionately with an employment action. How do we know? The courts have given us a test called the 4/5ths rule.

 

 

The best way to explain the 4/5ths rule is to give you a simple example. Let’s suppose that we live in an area that is basically evenly split between African American and White population. You are planning on hiring about 40 new employees for a general position in your company. You decide to give each of the potential employees a written test. If the results of the test disproportionately rule out the African American portion of the population then you’re written test is not consistent in effect. Let’s use the 4/5 rule to find out whether or not you were being consistent.

To make this example simple we will assume that you had 100 White male applicants and 100 African American male applicants - there were no female applicants for this particular job. What would show that you were consistent in effect? Look at the following numbers.  

 

White Males          African American Males
Applicants – 100    Applicants – 100
Selected – 20        Selected – 17

Selection rate for White Males=20% (20/100)
Selection rate for African American Males=17% (17/100)

To be within the 4/5ths rule, our minority selection rate must be within 4/5 of the selection rate for the majority population – in this case White Males, so we take 4/5 (80%) of 20% (or 0.8 x 0.2 =.16) or 16%. Therefore in this case we are within the 4/5ths rule, because we selected more than 16% of the African American Male applicants. If we had 40 African American Male applicants what would the figure be? Our selection rate for White Males is still 20%, so the 4/5ths value would still be 16%. We then take 16% of 40, or 6.4 African American Male applicants that we would need to hire to be within the 4/5ths rule. Of course we would round up here – you can’t have .4 of a person – so the figure would be 7.

By the way, we can also look at 6/5ths to determine the possibility of reverse discrimination, so we would want to be between 16 and 24 African American Males selected in the first example. If we are outside this value have we automatically broken the law? No! We would, however, need to investigate why we are outside the 4/5ths parameter. If there is a legitimate reason for the discrepancy that would be able to be proven in a court case, we may be OK with a selection rate that is outside the parameters.

Consistent in effect is the most complex of the four OUCH Test factors.

4. Has job relatedness – Is the action directly related to the primary aspects of the job in question? The word "primary" is very important and has been defined for us in the American's With Disabilities Act (ADA), which calls these factors “essential job factors”. Our actions always have to be job related. In other words, if your job has nothing to do with making coffee for the office in the morning I cannot base any employment action such as a hiring or firing on whether or not you can make coffee. 
 

WARNING - The OUCH test is, as noted above a rule of thumb.  It is not a legal test.  However, in more than 20 years as an active manager, I don't remember a case where a company and its management were held liable in court for an action that met the four OUCH test rules.  This isn't to say that it couldn't possibly happen, I just don't remember a case where it did.