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Employment testing and discrimination in the post-Ricci era

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in Discrimination and Harassment,Employee Benefits Program,Employment Law,Human Resources

Like every other aspect of the employer-employee relationship, a variety of federal and state laws govern how employers can administer job-related tests.

THE LAW: Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, ethnicity, sex, religion and national origin in all aspects of employment—including job tests. The Age Discrimination in Employment Act prohibits discrimination based on age. The ADA requires employers to provide reasonable accommodations to qualified individuals with disabilities to allow them to perform the job’s essential functions.

All three laws allow employers to construct job tests that are “job related” and “consistent with business necessity.” But several high-profile lawsuits have alleged that job tests had a disparate impact on women, minorities or older workers.

WHAT’S NEW: The U.S. Supreme Court ruled last year in Ricci v. DeStefano that employers violate Title VII if they do not validate job testing results solely because they fear a lawsuit. The New Haven, Conn., fire department very infrequently administered tests for lieutenants and captains. Rules in the collective bargaining agreement and the city charter required the city to place the top three scorers for each opening on a list, with the best scorer at the top. As positions opened, the top scorer was promoted.

In 2003, the city began preparing the tests. It hired a consulting firm, Industrial/Organizational Solutions (IOS), to develop the test. IOS developed study manuals for each position so candidates could prepare for the test. The fire chief and assistant fire chief reviewed and approved the manuals. IOS then developed multiple-choice tests consisting of 100 questions based on each manual. IOS assembled 30 assessors to grade and rank the tests. Two-thirds of the assessors were minorities.

In late 2003, 77 candidates took the lieutenant examination and 34 passed—25 whites, six blacks and three Hispanics. Under city rules, the top 10 scoring candidates could be immediately promoted. All 10 were white.

The captain test yielded similar results: 41 candidates, 22 passing grades—16 whites, three blacks and three Hispanics. City rules said the top nine scoring candidates were eligible for promotion—in this case, seven whites and two Hispanics.

For both ranks, more than half of white applicants passed the test, while more than half the minority candidates failed.

City officials immediately feared the tests discriminated against minorities, so they began examining the test preparation and methodology. Once it became clear the city wasn’t going to certify the results, white firefighters filed suit to compel the city to do so. In its defense, the city claimed it feared a lawsuit if it certified the results.

A federal district court sided with the city and the matter was appealed to the 2nd Circuit Court of Appeals. The 2nd Circuit agreed with the District Court and the firefighters appealed to the Supreme Court.

The High Court ruled that fear of a lawsuit, absent any other evidence to support the contention that the tests were discriminatory, was insufficient to prevent test certification.

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