Courts take new aim on pre-employment tests

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.