Workforce Management
September 2009
Employers who learn that a test or other selection device has a discriminatory impact on some employees now find themselves between a rock and a hard place. Using the test may lead to one kind of discrimination claim, while discarding the test may lead to another. That makes it more important than ever that employers think through the possible issues before using any test or selection device in making employment decisions. By James A. Burns Jr.
To help choose among job applicants or candidates for promotions, many employers use tests or other selection devices such as educational requirements aimed at predicting who is likely to do well in the relevant position. One risk of doing so is that such tests or devices, although neutral on their face, may screen out a disproportionate number of women, minorities or members of other protected groups. Upon learning that a test would have such an effect, an employer wary of facing a discrimination suit may be tempted not to use the test in deciding who to hire or promote.
On June 29, the U.S. Supreme Court held that such an approach can easily backfire. In seeking to avoid unconscious discrimination against some employees, an employer may intentionally discriminate against others. In Ricci v. DeStefano, the court held that scrapping a test because a statistically significant proportion of a particular race or sex did poorly on the test amounts to intentional discrimination against those who did well on it, unless the employer can show a “strong basis in evidence” for fearing that using the test would lead to liability.
Employers who learn that a test or other selection device has a discriminatory impact on some employees now find themselves between a rock and a hard place. Using the test may lead to one kind of discrimination claim, while discarding the test may lead to another. That makes it more important than ever that employers think through the possible issues before using any test or selection device in making employment decisions.
Two kinds of discrimination Title VII of the Civil Rights Act of 1964 prohibits two types of employment discrimination based on race, color, national origin, sex and religion. First, the law prohibits intentionally treating one employee better than another because of such protected characteristics. This is called “disparate treatment” discrimination. Second, the law prohibits unintentional discrimination that results when an employer uses a test, selection device or practice that is neutral on its face but has a disproportionate adverse impact on members of a protected group. This is “disparate impact” discrimination. In the Ricci case, the court addressed what happens when an employer may face both kinds of claims from different groups of employees.
The court’s decision The city of New Haven, Connecticut, used a written test to help decide which firefighters would be eligible for certain promotions. In reviewing the test results, the city discovered that the test had a statistically significant adverse effect on African-Americans. Not only was the passing rate for black firefighters only about half of what it was for whites, but none of the employees with top scores—the only ones eligible for promotion under city rules—was black. Understandably, the city worried that using the test would lead black employees to file, and probably win, a suit alleging that the test had a discriminatory racial impact, so the city decided not to use the test in deciding who could be promoted.
In what likely appeared to the city as a case of “damned if you do, damned if you don’t,” it was then sued by 18 firefighters (17 white and one Hispanic) who had done well on the test, alleging that the city had discriminated against them based on race by refusing to use the test and thus denying them a chance at promotions.
By a 5-4 vote, the Supreme Court ruled in favor of those non-black employees, holding that they had been subject to intentional race discrimination by the city. The court acknowledged that the city’s test had a statistically significant adverse effect on blacks, but said that alone did not justify throwing out the results and thereby discriminating against white and Hispanic employees based on their race, given that the city had taken reasonable steps to make sure that the test was job-related.
To justify discarding a test, the court held, an employer must be able to show a “strong basis in evidence” that it will lose a disparate impact suit brought by employees who would be screened out if the test were used. Statistics alone are not enough.
Full Story: http://www.workforce.com/section/03/feature/26/64/87/
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