Legal Defensibility

The Boston Railway Company

Some of the original work done on the development and validation of tests as selection tools was at the beginning of the twentieth century with trolley drivers for the Boston Railway Company. Working with company records, Hugo Munsterberg, a leading industrial psychologist of his time, identified that the most important predictive criterion for operator success was frequency of accidents. Using what is now known as a content valid approach, Munsterberg constructed a laboratory “simulation” of the trolley operator’s job demands. The simulation was a wooden apparatus with a series of windows that showed moving street scenes. In this case, the candidate, using a crank to control the speed of the trolley, had to react to changes in the street scene in order to avoid an accident. Candidates were scored on the speed and accuracy with which they avoided potential accidents.

A disgruntled candidate who was unsuccessful in obtaining a position will either assert a case under common law or more often assert that his/her rights under Human Rights Legislation were violated¹³.

If employers base their employment decisions solely on the basis of the candidate’s ability to do the job rather than on factors unrelated to job requirements, qualifications, or performance (such as the bona fide occupational requirements listed in the National Occupational Standards) the disgruntled candidate’s claim or complaint may be successfully defended.

The main principle behind Human Rights law is to ensure employees are hired and retained on the merit principle and not on the basis of unfounded stereotypes or prejudice. As such, Human Rights Legislation across the country provides that it is not discrimination to refuse employment strictly on the basis of objective and bona fide occupational requirements. A bona fide occupational requirement is a condition of employment, which is imposed in the sincere belief that it is reasonably necessary for the safe, efficient and reliable performance of the job, and which is, objectively and reasonably necessary for such performance.

¹³ It should be noted that challenges of this nature are considered on an individual basis and that one unsuccessful claim does not mean that another will be unsuccessful as well.