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.
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.
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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