Jump Toward Emotional Intelligence

Maneuver the legal hurdles to these and other kinds of assessments.

October 1, 2012 | Gabrielle Wirth and Gary Gansle

Emotional intelligence (EI) can be more important to a manager’s performance than technical skills. A number of assessment tools help gauge a job candidate’s emotional intelligence. But, while these assessments can provide insight into a candidate, they can also raise significant legal issues.

Improving executive EI is an emerging trend in leadership development consulting. Important aspects of emotional intelligence are self-awareness, the ability to communicate and influence, commitment, and integrity. Executives with high levels of EI promote teamwork and facilitate leadership because they are aware of how their actions affect others. Executives with lower levels of EI tend to have interpersonal relationship problems and difficulty leading, according to Daniel Goleman’s book Working with Emotional Intelligence (Bantam, 2000).

As with the use of psychological assessments, there have been claims that the personal nature of EI assessment questions violates individuals’ right to privacy. And some assessments have been alleged to have a disparate impact on protected classes.

While it may be helpful to assess and evaluate potential employees’ EI scores, federal and state fair employment laws prohibit employers from using employment practices that cause a disparate impact on the basis of race, sex, age or other protected categories. Emotional intelligence assessments fall under the purview of the Uniform Guidelines on Employee Selection Procedures issued pursuant to Title VII of the Civil Rights Act of 1964, as well as other anti-discrimination and privacy laws.

Assessments vs. Interviews

To validate any assessment under the Uniform Guidelines on Employee Selection Procedures, an employer should have data showing that it measures identifiable characteristics determined to be essential to performance in the specific job. There is much less guidance available on validating EI assessments.

Courts have held that applicants have a much lower expectation of privacy than do existing employees. So, EI assessments used to evaluate existing executives must meet higher standards than those used in the interview process. Voluntary participation minimizes legal exposure.

There are significant differences in the legal risks associated with these assessments vs. interviews. An assessment made up of written questions can predict outcomes and minimize discrimination claims because it provides a standard set of questions to all job applicants.

Interviews are more problematic, as the current trend is to ask open-ended questions with specific follow-up questions that vary depending on the answer. As with written assessments, interviews should be structured so candidates are asked the same set of questions. For example, a popular question to assess self-awareness is "Tell us about a time when your team did not agree with your approach toward a goal. How did you respond, and what was the result?"

Getting Buy-In for Training

Low-risk strategies for improving EI among managers and executives include making available one of the many books or courses on the subject. Or the company could pay for managers and executives to take a confidential assessment and work with coaches voluntarily.

A company can promote improved emotional intelligence by showing how improved social and emotional competence will lead to desired outcomes. For example, by implementing these assessments in positions where the impact can be quantified, a company can build credibility and encourage voluntary participation. These voluntary measures present little legal risk as long as they are made available to all similarly situated employees regardless of membership in one or more protected classes.

Concrete examples of the success rate of individuals who possess higher scores can motivate managers and executives to improve voluntarily and can provide evidence to validate the company’s further use of screening for EI—both of which are helpful defenses in a legal challenge.

360-Degree Reviews

Certain 360-degree reviews can be used to measure an executive’s emotional intelligence. However, this type of performance evaluation presents more-difficult legal challenges if not implemented carefully.

In a 360-degree review, the executive completes a self-review and is reviewed by bosses, peers and direct reports. As with pre-hire assessments, to reduce the risk of a legal challenge a 360-degree review must be job-related, must accurately measure performance, and must not discriminate against anyone based on membership in one or more protected classes.

While many executives receive training on how to legally conduct reviews, direct reports often have much less training, if any. Careless and inappropriate comments from untrained participants in a 360-degree review can lead to legal exposure. Employers have long recognized that a discriminatory comment by an employee’s supervisor can create legal liability. However, recent cases allow for what’s known as "cat’s paw" liability; in fact, a March 2011 U.S. Supreme Court ruling upheld the principle.

Under the "cat’s paw" theory, a discrimination claim can be made based on evidence that a nondiscriminating decision-maker was influenced by others who did have a discriminatory motive. In the Supreme Court case, a supervisor didn’t like an employee and advised a manager performing a review of the employee that for various reasons the employee should be fired. The manager had no personal knowledge of the employee and had no bias against him; however, based on the supervisor’s input, the manager fired the employee.

The Supreme Court ruled there could be discrimination in this instance. If a supervisor, motivated by bias, takes actions with the intention of getting an employee fired and if that supervisor’s actions actually cause the employee to be fired, the employee can sue the company for employment discrimination—even if the biased supervisor is not the final decision-maker and the final decision-maker is unbiased (Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011)).

Other recent cases highlight the importance of making sure evaluators don’t make "stray remarks" that might be interpreted as evidence that a co-worker has a discriminatory motive in completing the evaluation. Comments such as "not a cultural fit," "ideas were obsolete," "is slow, fuzzy and lethargic and displays no sense of urgency" are problematic.

If conducted, 360-degree reviews should be designed carefully to minimize the chances of stray comments. Those who fill them out should receive training on the employer’s equal opportunity goals and how to properly complete these reviews.

Best Practices

Here are a few best practices that may prevent being sued as a result of emotional intelligence interviews and assessments:

Qualify a candidate before assessment. Make assessment the last criterion for hiring. Use evaluations only after the candidate has been qualified for the position based on more-objective factors such as reference checks. If a candidate isn’t eligible for other reasons, there’s no need to obtain the personal information that an assessment elicits.

Tailor interviews and assessments to essential and demonstrable traits for success. EI assessments and interviews should directly measure traits required for job performance. To increase the chances that your practices will be legally defensible, demonstrate that the traits you’re measuring are clearly job-related. Some companies hire consultants to perform job analyses. If you buy an assessment, ask the provider for documentation that it has been validated under the Uniform Guidelines on Employee Selection Procedures or, at a minimum, that it has been shown to predict success in similar jobs.

Standardize questions. If you use interviews to measure EI, use the same structured interview questions for every candidate. A standard interview helps demonstrate that all applicants were evaluated on the same job-related criteria.

Improve emotional intelligence in existing managers. If you are accepting the legal risk and using EI criteria to screen new manager and executive applicants, such analyses likely should be used as development tools for existing managers. Otherwise, it is difficult to argue that EI is an essential management tool. Provide coaching for successful candidates. Many executives will embrace the program, thereby helping to create an expectation and culture of EI development—with reduced legal risk.

Monitor results to ensure that there are no adverse impacts. As with any newly implemented employment practice, the results should be reviewed and analyzed periodically to ensure that there is no adverse impact on any protected category of applicants. Avoid repeating some of the generalizations included in many EI resources, such as average scores for women and average scores for men, as this could suggest that stereotypes, not actual results, are influencing decisions.

Use 360-degree reviews sparingly and carefully. Use 360-degree reviews as a development tool rather than a substitute for performance appraisals. Look for complaints that might constitute protected whistle-blowing, and thoroughly investigate them. Train everyone who will be filling out a review, not just the executive team.

Tie EI to achievement of company goals. Provide individual feedback that supports changes that have been made and that encourages continued growth. Consider making such reviews developmental reviews that aren’t linked to performance appraisals. Provide concrete examples of how improved emotional intelligence has positively affected the company’s goals in productivity, turnover or innovation. This feedback encourages employees to change and improve their EI, and provides valuable evidence that EI is a valid job requirement in the event of legal challenges. Gabrielle Wirth heads the southern California employment group at Dorsey in Costa Mesa, Calif.

Gary Gansle heads the northern California employment group in Dorsey’s Silicon Valley office.