Courts take new aim on pre-employment tests
April 23, 2009 by Sam NarisiPosted in: Job screening tests, Law, Special Report
As HR pros know, using pre-employment tests that have an adverse impact on a protected class can get companies dragged into court. But here’s some news: Trying to avoid a disparate impact can get you in trouble, too.
That’s what happened to the fire department in New Haven, Connecticut, which argued its case before the Supreme Court yesterday.
The department used a test to choose candidates for promotions to captain and lieutenant. The employees with the highest scores — and therefore those who would’ve been promoted — were all Caucasian.
But those employees weren’t selected. The scores excluded several African-American and Hispanic employees who applied for promotions. Believing the test was biased, management decided to throw out the results and base the decisions on other factors.
However, in trying to avoid one legal problem, the fire department got hit with another: 20 white applicants sued, claiming they would have been promoted if the test counted. By tossing the results, they said, the department was discriminating against them because of their race.
Two courts disagreed and threw the case out. Companies are obligated to make sure tests are unbiased, the courts ruled, so the fire department couldn’t be held liable ignore a selection procedure it believed was against the law.
The story didn’t end there. The employees appealed and the case is now being heard by the Supreme Court.
The early word after arguments were heard yesterday: Opinion is split between the Court’s liberal and conservative blocs, the Hartford Courant reports.
Justice Antonin Scalia remarked that “setting aside a test because one race prevails” is essentially making a race-based decision. On the other side, Justice David Souter said the fire department faced a “damned if you do, damned if you don’t situation.”
The result of the case could have a big impact on how companies need to evaluate pre-employment tests. We’ll keep you posted.
What do you think? Should the fire department have used the test results in its decisions on who to promote? Tell us what you think in the comments section below.
April 24th, 2009 at 9:14 am
In an article on msnbc.com, they stated that “the exams were designed by a professional testing firm (unnamed) that followed federal guidelines for mitigating disparate racial outcomes”
If this is the case, it’s hard to understand why the city decided there were flaws in the test AFTER the results came back, stating:
1. the written section measured memorization rather than actual skills needed for the jobs
2. lack of testing for leadership in emergency situations
New Haven, if they truly believed the test was flawed, should have arrived at that conclusion BEFORE they administered these tests. Now it just seems like they are trying to cover up something.
April 24th, 2009 at 11:50 am
Brian makes the right point. I was a test developer for cities and counties for many years. The key issue is whether the test is job-related and able to predict performance. If New Haven had done things right, i.e., established the validity of the test prior to its use, disparate impact charges would not be a big deal to defend. Had they not been able to establish validity, the test would not have been used. The fact is, New Haven did not do things right and the result was costly litigation and political turmoil. New Haven was not well-served by their civil service exam group.
April 24th, 2009 at 12:07 pm
The Fire Department should have used the test that had been devised as the evaluation tool, as long as the test was given to all who applied for the position. The action that the 20 applicants took seems appropriate.
April 24th, 2009 at 12:19 pm
New Haven made its decision based on what they thought might happen in order to appease groups putting pressure on them for more diversity. Nothing could be more ignoble than making a decision based on intimidation rather than objectivity. I agree that the test should have been validated prior to use to ensure a disparate impact did not exist. Since the tests were approved for use the City should have truly backed its best candidates. Instead New Haven decided to defend candidates that did not successfully meet the criteria on the tests and who might have brought a law suit against the City. The populace deserves and demands the best they can get from their civil servants. So shouldn’t New Haven defend the top candidates first regardless of race – or – are we going to allow our Firefighters to choose who they will and won’t take out of a burning building based on the color of their skin?
April 24th, 2009 at 12:30 pm
Of course the firemen who say it’s unfair that they weren’t promoted are right. They got the highest grades on an unbiased test. Come on–when will this race stuff stop? I think by the time you are done with high school, all references to race have to stop. Study in school and get the best grades you can. Then you just might be discriminated against if you’re black, white, young, fat, skinny, whatever. Life isn’t fair. Get over it and move on. I’m getting so tired of all the complaining about getting equal results in life. Work hard. Read and improve yourself. That’s the only way I know to get ahead in this world. And there are no guarantees of success even if you do all the “right” things. So, just stop complaining.
April 24th, 2009 at 1:17 pm
If the tests were communicated to those applicants as a part of the decision process the fire department was in error in throwing them out. I agree with Brian, the department should have made the determination regarding testing prior to the applicants becoming envolved.
April 24th, 2009 at 1:40 pm
Brian – you are right on! However, if you live in Southern Connecticut (as I do), it’s not difficult to understand why the city threw out the results. In my opinion, it truly was a race based decision.
April 24th, 2009 at 2:19 pm
This could be a blessing in disguise. If the Supreme Court as a whole realizes what Justice Souter verbalized, perhaps new legislation will appear to reverse the phenomenon.
EEOC has not previously been concerned with whether a process was valid or not, but merely if it resulted in disparate treatment.
Justice Scalia’s opinion is quite accurate, but until now of no regard to court or EEOC rulings.
April 24th, 2009 at 2:48 pm
If the test is designed to help identify the best candidates for Captain and this was communicated to all applicants as part of the decision process then the fire department should out have thrown out the tests. Certainly, the responsibility of a fire captain is a very serious one. He /she has the awesom task of directing people in a life and death situation. Race should not be an issue. The most competent candidate for the position is
April 27th, 2009 at 9:02 am
The tests should have been used assuming they were scrutinized for bias during development. One has to presume that all eligible individuals have an equal opportunity to prepare.