Employer tossed biased test results – still hit hard in court
July 21, 2009 by Sam NarisiPosted in: Assessing the right candidate, Law
A recent employment law ruling by the Supreme Court has gotten a lot of attention — but what impact will it have on HR’s day-to-day job?
A summary of the case:
The fire department in New Haven, Connecticut, used a standard test to choose which firefighters to promote to lieutenant and captain. In one round of testing, 19 white employees and one Hispanic employee passed. No black firefighters passed the test.
According to the employer’s policy, the 20 employees who passed should have been promoted. But, viewing the test as biased against the black employees — and fearing a lawsuit from them — management scrapped the results and based the promotions on other factors.
In a classic case of “you’re damned if you, you’re damned if you don’t,” the department was hit with a lawsuit — from the 20 employees who passed the test and weren’t promoted. They claimed they mere most qualified for the jobs — according to the department’s policy — but weren’t promoted because of their race.
Two lower courts threw the case out before the Supreme Court reversed.
What does it mean to HR?
The case has gotten a lot of attention, mostly because the decision overturns one made by High Court nominee Sonia Sotomayor. But what does it mean for HR pros?
The Court’s ruling stressed two points:
- Employers do need to be careful about using selection procedures that have a disparate impact against a protected class, but
- It’s not just a numbers game — if a test is job-related and consistent with business necessity, there’s no reason to suddenly change a selection procedure based on how many people of a certain race, gender, religion, etc., pass.
So basically if the test is legal, employers should stay consistent, rather than using the results in some instances and not in others.
Of course, few employers base hiring and promotion decisions solely on one thing, so deciding whether or not to scrap a test’s results likely wouldn’t have as big an impact as it did for the New Haven fire department.
But the case does contain a general lesson managers should be reminded of: Fear of being sued by members of one protected class is not a defense for discriminating against another.
Cite: Ricci v. DeStefano
July 6th, 2009 at 10:50 am
I think justice was served in this case. I wonder whether the city consulted their lawyers before throwing out the case? If so, they should be fired.
July 6th, 2009 at 11:29 am
The Supreme Court never should’ve heard the case. In my mind, the case was heard for the sole purpose of attacking affirmative action programs.
For true human resource professionals there is only one definition of discrimination – the 4/5ths rule. The examiners reviewed the test results, found discrimination based on that rule, and it would have been a horrific miscarriage of justice to use the test as is.
It is now anticipated that the minority firefighters will sue the city for using a test process that they knew ahead of time was discriminatory. Conservative opponents consistently attack those mechanisms that attempt to bring more minority participation into the mainstream of American economic life. As in past civil rights struggles, professionals of goodwill will will continue to advocate for systems that result in real gains – and oppose those whose policies procedures and ideology delay those gains.
July 6th, 2009 at 11:40 am
Specific job standards need to be established – prior to candidate selection. These standards need to be fair and consistent with the specific job requirements – not based on the racial demographics of candidates.
If this test was determined to be discriminatory in nature, then this should have been determined PRIOR to beginning the recruitment process.
Equality means EVERYONE being measured by the same standards!
July 6th, 2009 at 12:00 pm
Like being able to read and write in English to start. Experienced the very same thing….hey, if no one is interested in the job or is too lazy to work hard at passing a basic test of language, critical thinking skills and interpretation of situations then use what you have from the list.
There is no impediment but oneself for not signing up and taking the test or passing – and there is no common sense dictate that says everyone must pass – some people just don’t have the brains for the job – and shouldn’t be making critical life saving decisions either….hence the screening process.
The Sotomayer “decision” against the white fire fighters on this case is a paltry, unprofessional and insulting one paragraph. Talk about lazy…..no small wonder it was overturned.
July 6th, 2009 at 1:11 pm
YEAH!!! for once in a long time the Supreme Court has ruled correctly. I wouldn’t want a job given to me because of my race, gender or religion. I want it based on my skills. BUT – whoever wrote this original article needs to re-read before printing. Lots of errors – speaking of skills???
July 6th, 2009 at 1:35 pm
I can’t believe not a single “man or woman ” of color as it was put (black) employees didn’t pass the test. What are you actually saying? We have hired these individuals, they passed the test to become firefighters but not to continue their career to climb the ladder of success. I can’t believe this and if someone does they might want to rethink their decision. This just doesn’t make since. I believe that prejudice still exist in this country and if you take a good look at some company’s who only have a hand full of men and women of color in their establishment can judge for their self. This world is full of over a billion men and women of color that are very smart, intelligent and that are well educated. You have some who do not won’t to see the man of color obtain success or make a certain amount of money. There are those who still want to hold power over a certain group of individuals, we all know that the man or woman of color must work extra hard for what the want in order to obtain it, this is just fact. Yes, we have a man of color that worked hard to obtain the presidental office but you have those who veiw his ideas as non effective, you have to realize that a certain race of individuals have a very different mind set; most care about the well being of others and you have those who don’t.
July 6th, 2009 at 1:57 pm
I have a question; Did any of the “men or women of color” even take the test and if so how many? Is this actually true or a test of conflict among use as individuals?
July 6th, 2009 at 3:50 pm
This is just the first step in realizing that racism is not just something that happens to blacks or hispanics. I’ve heard a lot about this case and that outsiders were brought in to create the test. I have heard no concrete evidence that the test was biased or discriminatory against minorities. Peter, if you know differently please back your statement “knew ahead of time (the test) was discriminatory”. If we are going to have “racism” discussed in this country, realize it can go both ways, as well as “hate” crimes which is now coming up with this administration. True equality doesn’t look at skin color, gender, religion, etc. In other words, no affirmative action. If they were coming to your rescue, wouldn’t you want to most qualified person in the job?
July 6th, 2009 at 4:14 pm
For all of you who believe that this was a case of discrimination should bother to read the Transcript.
In the courts decision it states very clearly that the city of New Haven made every effort to make this test race neutral and written at an acceptable grade level for a Lieutenant or Captain. If I recall correctly there was even a comment by a black professional firefighters group who reviewed the test and stated that all the questions were relevant and reasonable things a Lieutenant or Captain needs to know.
The problem for the court here is the city based its decision to ignore the test on race. This is illegal!!!
Our Constitution gives us equal protection under the law.
July 6th, 2009 at 4:16 pm
From what I have read, the tests were designed specifically to avoid any semblance of preference towards anyone. The city simply caved in to the pressure from local indentity politicians to invalidate the results. Do you believe for a second that if all those that qualified due to the test were blacks and hispanics that this would have been a problem? I venture to guess it wouldn’t. The brief opinion given by the local court simply confirms they were uncomfortable with their decision. It reminds me of voting “present” in Congress or state legislature. Wouldn’t want to let someone know how they arrived at their decision.
July 6th, 2009 at 4:27 pm
To hold minorities at a lower level than whites is not only discriminatory, but demeaning, especially for those of us who continually strive to achieve the highest possible standards!
You don’t help a person in a “protective” class by giving them “browny points” (no pun intended), but by measuring everyone by the same (highest) set of standards.
The meaning of equality is: “Rights, treatment, quantity, or value equal to all others in a specific group.”
What do we not understand here? If the test was not a fair test, then it should NEVER have been approved. However, if it was a fair measure to determine the capability of the individuals being tested, then either you pass or you fail. If you pass, you get the promotion, if you fail, then you don’t – regardless of race!
Eventhough Ms. Sotomayor might have had her heart in the righrt place, she has caused more damage than good to hard working, intelligent minorities. Don’t do us any favors!!!
July 7th, 2009 at 7:24 am
This is an interesting case in that even the desenting supreme court types, while desenting from the majority, disagreed with the reasoning of the lower courts as to why the case should be thrown out. This in itself should say a lot about the reasoning of the first two levels of the court review. This test was reviewed by all interested parties prior to it being administered. they all agreed that it was unbiased and that all questions were relevant to the position. This being the case it was clear recial descrimination to throw it out STRICTLY because the passing ranks were dominated by one race or another. We need as a country to stop drinking the PC wine and start ignoring race in all hiring decisions. I stress IGNORE. That is the definition of not being racially biased.
July 7th, 2009 at 9:34 am
To be valid, a test should be able to measure the first day knowledge and skill requirements of a job. Determining the knowledge and skill requirements involve a job analysis and the input of incumbents and their superiors. After validation, if there is a pattern of failure in the testing, which violates the 4/5th rule, the test should be reviewed for flaws and revised to correct the flaws. Also, there should be an opportunity for those who failed the test to get developmental training and another opportunity to test.
The language used in this discussion is flawed with private definitions of terms like “discrimination,” “racism.” Let’s use the Webster dictionary version. “Discrimination” is not wrong in itself. We have to discriminate everyday as part of the decision making process. For those familiar with American history, racial discrimination has been a policy in this country since its beginning. Certain amendments (13th, 14th, and 15th) to the U.S. Constitution abolished slavery, made former slaves citizens, and gave former slaves the right to vote. These laws were not enforced so the Civil Rights Acts was implemented to enforce laws already in the Constitution. It was implemented to protect Blacks who were discriminated against by whites because of their race.
July 7th, 2009 at 3:12 pm
So, bottom line, the test has been used and had been checked to be legal and unbiased. Silly for the admin to throw it out. I think we all need to get back to basics and common sense. Persons taking and failing a test happens with all skin colors; failing an approved test has nothing to do with “color or lack of color”. Being white does not mean there can be no discrimination, being “of color” does not in fact mean discrimination. The city was incorrect because they allowed color or lack of to influence them, not ability. Just a thought.
July 7th, 2009 at 4:17 pm
When promoting employees it should be decided on there overall performance not just on a written/verbal test. If a test is required there should be a point system where the test is only a portion of the decision of whom gets promoted. I have seen where many valuable employee’s have been passed up for a promotion due to a lesser test score when overall they would have been the better choice in a position. I believe this applies in all asspects of our lifes today. We need to look at the overall picture not just one
July 7th, 2009 at 7:33 pm
Speaking of test or measures, what type of computer based test or measures are illegal?
Should an HR manager use a web based dont know who sent it repsonse test to subordinates on their bosses??
July 8th, 2009 at 4:06 pm
Dawn,
This was a case where all you had to do was “pass the test”. In most cases that means you need to be able to answer 60-70 percent of the questions correctly. If you can not read a question and answer it correctly just a little more than 50% of time you may not be prepared to advance.
The City probable decided on a objective Basic knowledge test for promotion to avoid being accused of favoritism, Cronyism, racism, nepotism or politics that surround other “subjective” selection process.
Why do we assume that the promotion list would have been any different if race was not an issue in the process?
July 8th, 2009 at 6:40 pm
Paul I agree. From the information given, the list would not change as the people who passed are simply the people who passed. Not much more to add…
July 9th, 2009 at 7:09 am
In govt hiring we have the civil service system. It is designed to get rid of the things paul mentions. Generally before a person take it they have to have general items completed such as time in job, completed training classes, degrees, etc. The test is designed to gauge the knowledge level in relevant categories that are required to perform the job. This test was screened beforehand to ensure it contained ONLY questions that were relevant to specific job knowledge by all concerned parties. The city threw out the results because the results of the test appeared biased NOT because the test or the promotion process displayed any biased. This is why they screwed up. The real issue here is that the courts agreed with them. This was such a no brainer legally that it astounds me. The PC police are running rampant.
July 9th, 2009 at 3:01 pm
If we can get over this constant harping about alledged race descrimination on tests….reading writing and arithmatic is descrimination – yes if you are an idiot. Good.
I have seen this nonsense go on for several decades now….stop already. People aren’t getting any smarter in the public sector maybe -so instead of looking for better candidates we just lower the qualifications needed? Bad move.
To get candidates of all backgrounds they do actually need to apply – a first sign of some initiative. So if there are none who passed from a particular race we must ask were there any in attendence for the test? If not it is their own fault – no one else.
Recruiters go out to homes to get people to sign up for these CS jobs…..do you see private industry do that? Not unless you are a rocket scientist…and the CS applicants I have seen now have criminal records. Standards? Questionable.
There is little descrimination in the application process that screens for tenure and grade – like any other job. Dawn makes a good point which is true in many cases but unfortunately it would create a boondoggle (seen it) trying to get someone low on a list hired.
July 9th, 2009 at 3:03 pm
See, even I can’t spell…..oops! Arithmetic!
July 9th, 2009 at 7:06 pm
A number of responders have suggested that the test questions were validated for use in a promotional setting. I would hope that the people that put forth this patently absurd assumption reflect on why they would make such a statement. Supporters of civil rights, like myself, tend to view these statements as racially insensitive and culturally naïve.
Firefighter examinations are used all across the country. The number of examinations given number in the thousands. I have personally seen many of them. Not one of the firefighter examinations that I participated in or viewed the results of, resulted in a discriminatory effect on par with that of the New Haven examination. This fact alone should indicate that there were less discriminatory alternatives available – exactly what the law calls for. It also suggests that the people designing the test did something different and apparently did not have the expertise to identify test items or interview questions (and answers) that may have had subtle and not-so-subtle discriminatory effects.
Results, results, results – the time has come to insist on results.
July 10th, 2009 at 10:06 am
Peter, “results” are not the answer. The answer is for the people taking the test to have the knowledge to pass it. We can not, especially in a safety related field, continue to lower the standards until we get “results”. The test was scened by the fire fighters unionl multiple lawyers, and several civil rights groups who all said it was unbiased and contained only job related questions. Note in the legal decision that NO ONE said the test was at fault. The job should go to the best applicant and if an applicant does not have the knowledge to pass a written civil service test then they should not get the job. I don’t want a person who passed a dumbed down test to be in charge of rescuing my family from a burning car or building. It is shear lunacy to even suggest such. The time to object to the test was before it was administered not afterward. Throwing it out was based solely on the “results” was clear reverse descrimination as demonstrated by the courts after they got past their PC sickness.
July 10th, 2009 at 11:02 am
Completely agree with you, Mike.
This is the point that I also tried to make. The decision whether the test was applicable or not should have been made PRIOR to administering the test.
Lowering standards is NOT the answer. If there are employees (regarless of color, sex, gender, race or ethnicity) who lack proper skills, then classes should be offered so that they can better prepare.
Holding minorities to a lower standard is offensive, demeaning and should not be tolerated! The employees that did not pass the exam should have accepted the results, return to school to prepare for the next test and tried again. Those who prepared and passed should have rightfully been promoted.
When are we going to start accepting responsibility for our own actions?
July 10th, 2009 at 11:32 am
Mike writes, “The test was scened by the fire fighters unionl multiple lawyers, and several civil rights groups who all said it was unbiased and contained only job related questions.” (sic)
This is again an appeal to non-scientific, non-professional personal testimony that carries no weight what-so-ever. The most respected professional organization in the field of testing (SIOP) filed a friend of the court brief in the fire-fighters case rejecting use of the test and supporting the lower court rulings. And you are willing to go with a few union reps, a few “civil rights groups” and some lawyers who say the test looked ok to them!!!
Hasn’t anyone heard of “face validity” – you know, the non-validity validity where the test “looks” like it should be fair but it may not be? The courts and the test development profession do not recognize face validity! The courts and the test development profession recognize content validity, construct validity and criterion validity -period!
I restate my assertion that anyone who supports the Supreme Court decision in the firefighters case is insensitive to issues affecting minorities in America and apparently have no interest in seeking real solutions with real results. Sorry to be so blunt!
July 10th, 2009 at 11:39 am
One more note:
Dan Biddle wrote a good article on the test (available at http://www.siopexchange.typepad.com) clearly demonstrating the flaws in the test. If you are really interested in a professional look at why we believe the court was dead wrong – read it.
July 10th, 2009 at 12:17 pm
Peter,
Supporters of civil rights, such as MYSELF, consider your statements to be insulting, patronizing, naive and other stuff.
I believe that all people should be treated equally. I believe my company should follow the law in its business practices and have always worked to ensure this.
In my experience when everything is “results” driven the greatest crimes occur. When the “result becomes the holy grail then you can justify all illegal and immoral activity(check history). ie you trample the civil rights of one group at the expense of another.
I also believe that when test results such as New Havens occur there needs to be a review to insure the tests are not biased. I do not ASSUME that the test is biased BECAUSE of the results. The assumption that because the “results” do not fit with Peter’s preconceived belief of what they should be, there must be a problem with the test is elitist at best.
The proper role of statistics is to alert you to potential problems. I was called on the carpet many years ago because statistics showed our Accounts Receivables were on upward trend. The “problem” turned out not to be collections but a consistent increase in sales. A careful analysis of all the factors is mandatory to determine if your conclusion is correct. Peter assumes that if the test was “fair” the results would be racially balanced. No thought is given to the demographics of those Whites, Blacks, or Hispanics who did not pass the test.
Peters principle of “results” means that a company can handle each and every case to the letter and intent of the law AND still cited by the zealots for subtle or inadvertent “racism”. An example of what I’m speaking of. A local middle school was investigated because certain minorities were being suspended at a higher rate than the other groups. The civil rights commission investigated and reviewed each and every referral (both minor and serious) to the Dean’s office for two years. They did not find one case where a suspension did not fit the crime or where students of different groups were treated differently. Do you think they could give the school a clean bill of health? See Peters comment above. It defies rational logic that if each event that makes up a body of work is legal that you can judge the body of work to be illegal.
Peter please understand that under our legal system we are (should be) all protected under the law. You and I shoulld be subject to the same laws and protections despite our race our gender. I should not be promoted or denied promotion based on my race no matter how well intentioned. My position on the New Haven matter would not change one bit if under the same circumstances 19 Blacks and 1 Hispanic passed the test and they threw it out because no whites passed.
July 10th, 2009 at 12:45 pm
Peter, I appreciate your beliefs and your bluntness. I also appreciate the “intent” of Affirmative Action, Unios and Civil Rights activism.
The problem is “extremism” – We tend to see everything in “black and white.” Unfortunately, that is not how our world works…
I for one (a minority), support the Supreme Court Decision – provided that the test was duly examined, tested, approved and proved not to be discriminatory, “prior” to it being administered. Tests need to determine the “job relatedness” and assess the individual’s competency to perform such functions. I agree that the BEST person should be promoted, especially in situations where people’s lives are at stake.
Question is (everything being “equal”) – would this case have made it to the Supreme Court if the individuals that failed where white? Perhaps not.
Racism exists, no question about it! (trust me, I’ve personally experience – and let me tell you, it hurts!!!). However, we cannot see every decision where a minority is not promoted, hired or disciplined as a case of racism – there are so many other factors to consider….. In this case, the fact is that some employees failed the test because they were not prepared. Rather than complaining about racism, they should first find out how they can improve themselves and be better prepared next time.
Being in a “protective” class should not be a crutch to success, but rather an inspiration to try harder and succeed! EVERYONE should be held at the highest standards, regardless of sex, color, etc., etc.
July 10th, 2009 at 12:58 pm
Last I checked it was a LAW that states a test must be unbiased not a SCIENCE. This being the case it would appear that a LAWYER just might be the best judge of a LAW and whether or not it had been followed. Now if there was SCIENCE that stated things should be unbiased than I would take it to a SCIENTIST and subject it to SCIENTIFIC analysis. All kidding aside your post and position is totally unscientific in the extreme. If I ask someone what steps to follow to open a door in a burning building and similar questions and they can not give the correct answer it has nothing to do with racial bias. It has to do with lack of knowlwedge. this test was screened by the union reps who were, strangely enough, firemen. It seems to me that they should know what types of questions applied to firemen and what type do not. This being the case, a group of FIREMEN and group of LAWYERS, it is a law thing and a firemen thing, should have a pretty good idea of whether a test is biased or not. Just because no firemen of a set racial group passed is not a defacto indication of the tests validity. Does it say you should look at the test, absolutely, does it indicate unfairness or bias, absolutely not. Every person in our society should be judged, and tested, with NO regard for the color of their skin. Saying that the 15 or 20 whites and hispanics were not the best candidates just because they were not black is prejudice of just as evil a stripe as saying that no blacks are good enough based on thier race. Quit trying to play the victim and give every race the same consideration and chance in the workplace and the world.
July 10th, 2009 at 1:18 pm
Amen to that!
EVERY race should have the SAME consideration and opportunity in the workplace.
Where racism is proven, it should be dealt with to the maximum extend of the law.
When the decisions are made fairly and consistently with with no evil-intent – leave it alone!!!
We ALL need to prove our worth by working hard, educating ourselves and attaining the maximum God-given potential!!
July 10th, 2009 at 1:24 pm
Ditto Syl
July 10th, 2009 at 4:53 pm
Well I guess you people didn’t read the SIOP article. It is hard to argue with personal feelings that rely on a rejection of science. I guess the “god-given” gave it away.
July 13th, 2009 at 7:39 am
Yes PR, I read it; along with no less than 7 other articles on the issue. Strangley the siop article differed from the others in view of the facts of the case. Key issue? It was reviewed prior to the testing by all interested parties. ALL found ALL questions relevant to the job. After the fact when one group was under represented they cried “racial bias” and played the victim card. The time to complain and cry is before the test not after. If the roles had been reversed I’m sure that the same groups would have been silent. I an most of the business community are tired of bending over backward to accomidate everyone only to be called racist for our trouble. The problem is not that we are racist, we are by and large not, the problem is that we refuse to lower the stahdards or give preferential treatment to the groups that were descriminated aganst as a matter of course 50 years ago. That was 50 years ago, not today. Our culture and the law have done away with the vast majority of decrimination and replaced it with reverse descrimination called “afirmative action”. Now the law is finally seeing this for what it is and throwing it out. No big loss. Now all will have to work to get ahead rather than some getting a free ride and others being shut out. Descrimination is a foul fiend in the workplace no matter who it affects, that is what the law was put in place to eliminate and we as professionals should make sure that it accomplishes that goal.