Employment testing: Supreme Court puts a premium on getting it right, first time

Dear HR Executive,

If you test applicants for knowledge, aptitude, skills, personality and the like as part of your hiring process, the Supreme Court just sent you a message:

Make sure your testing is appropriate, fair and nondiscriminatory from the get-go, because you risk a reverse discrimination charge if you adjust the process on the fly.

The message emerges from the court’s decision in the Ricci v. DeStefano case, handed down this week. The court said that the city of New Haven, CT, discriminated against a group of white firefighters who were candidates for promotion while trying to bend over backwards to be fair to black candidates.

Disparate impact vs. disparate treatment
What New Haven did was this: The city noticed that very few black firefighters had passed its promotion test, and was concerned that the test had a “disparate impact” – i.e., that although nondiscriminatory in intent, the test in practice screened out minorities at an unacceptable rate.

So the city threw the test out, foiling the promotions of 18 white firefighters who then took their case to court.

The lower courts said the city acted properly, but the Supreme Court said no: Actually, the city discriminated against the white firefighters by singling them out for “disparate treatment” – i.e., intentional bias.

The city would have been in the right only if it had a very strong reason to believe its test was unfair to minorities, the court said – and it didn’t.

Don’t change horses in midstream
Parts of the court’s decision in Ricci apply only to public employers. But there’s one key point that’s relevant to all HR pros: If you alter a testing process in midstream because of concerns it might be unfair to some protected class – a racial or religious minority, women, those over 40 – you risk committing discrimination against other applicants outside that class.

What’s the solution to this problem? Make sure your tests are fair in the first place.

Here’s how an attorney with the Proskauer Rose law firm, quoted by the New York Times, put it: “The ruling gives employers less flexibility to change the selection process once it’s been established. As a result, employers will want to try to establish bulletproof selection criteria.”

What a test should do
Here are three suggestions for bulletproofing your employment test(s):

• Make sure the test is testing what you need measured, and not something else. And be certain the test, whether written or physical, doesn’t demand more skill or effort than the job.
• Doublecheck the test’s validity – i.e., its real ability to predict job performance. In many testing discrimination lawsuits, frustrated applicants or employees have successfully challenged a test’s validity. Commercial testing vendors will be able to provide the validity coefficient of their tests – a number ranging from 0 to 1.0. Anything over .20-.30 is useful, while anything under .10 is next to useless, and anything over .70 is suspiciously efficient.
• Use job simulations along with written tests. In the Ricci case, one of the city’s testing consultants suggested that instead of a written exam, the city should have presented the promotion candidates with a series of real-world scenarios to see how they responded. Online testing featuring video simulations of various situations is available. Or, depending on the job, you could actually have applicants perform specific job-related tasks.

It’s not easy being perfectly fair in hiring, and this new Supreme Court decision doesn’t make it any easier. In fact, you may now feel as if you’re on a knife-edge between minorities’ and nonminorities’ legitimate demands for fairness.

But if you’re sure your employment testing measures only the qualities necessary for the job, and does so in a way that accurately reflects real life, you’re much more likely to avoid messy court battles and costly legal fees.

Dave Clemens
Editor-in-Chief
The HR Café Newsletter

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Comments

[MW]

What is interesting is that this addresses reverse discrimination but doesn’t say much about the validity of the test with regards to the specific job responsibilities and the correlation between test score and on the job performance. Has everyone who passed the test and got the promotion performed adequately and/or successfully in the job?