Employer tossed biased test results – still hit hard in court

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:

  1. Employers do need to be careful about using selection procedures that have a disparate impact against a protected class, but
  2. 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

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