Ruling Offers Little Guidance on Fair Hiring

The New York Times
Published: June 29, 2009

By STEVEN GREENHOUSE

In ruling for a group of white firefighters in New Haven on Monday, the Supreme Court tried to address a damned-if-you-do, damned-if-you-don’t quandary for many cities and other employers: what they should do when an employment test yields results that overwhelmingly favor whites.
But many legal experts said that instead of setting forth clear new rules, the court’s decision left things as muddled as ever for the nation’s employers — and seemed to ensure much more litigation over the explosive issue of employment discrimination.
“We don’t see clear, bright-line guidance here,” said Lars Etzkorn, a program director with the National League of Cities. “This is going to be good for employment lawyers.”
The 5-to-4 ruling applies largely to public-sector hiring and to civil service exams, but could also affect private employers that use tests or other screening methods. The court said that if an employer used a hiring or promotion test, it generally had to accept the test’s results — unless the employer had strong evidence the test was flawed and improperly favored a particular group.
With the court’s ruling making it harder for cities and other employers to throw out tests they conclude are unfair, employers are expected to work harder to make sure their written tests — indeed their entire selection process — are fair.
“The ruling gives employers less flexibility to change the selection process once it’s established,” said Katharine Parker, a lawyer with Proskauer Rose who is chairwoman of the Labor and Employment Committee of the New York City Bar Association. “As a result, employers will want to try to establish bulletproof selection criteria.”
Some may abandon written tests altogether.
To avoid charges of discrimination, many cities have already been moving away from such tests in favor of other methods of hiring and promoting employees in places like fire and police departments. They say written tests are often not the best way to determine who can perform best.
In New Haven, city officials, having concluded that their written test was flawed, said there was another, trusted method to select firefighting lieutenants and captains that posed less of a disadvantage to blacks and Hispanics. That method relies largely on assessment centers where applicants are evaluated in simulated real-life situations to see how they would handle them.
Supporters of the idea say assessment centers do far better than written exams in measuring leadership and communications skills and an applicant’s ability to handle emergencies.

Full Story: http://www.nytimes.com/2009/06/30/us/30impact.html?_r=1&hp