The Supreme Court’s recent decision in Ricci v. DeStefano provides important tips for employers regarding employment testing. Ricci was an important “reverse discrimination” case in which the City of New Haven administered a test for firefighter promotions for the New Haven Fire Department. Unfortunately, the City of New Haven did not take an important step that all employers should take prior to using any employment test in the workplace. That step involves validating the test to ensure that it has no disparate impact on a protected class in the workplace. Had the City of New Haven done this it would have discovered prior to using the test that the test had a disparate impact on African-American firefighters and thus the City would have then had the option of not using the test or revising the test to ensure that it did not have a disparate impact on this protected class.
Unfortunately, since the City of New Haven failed to take this necessary step prior to administration of the test, the City only discovered after administering the test for promotions within the Fire Department that it had a disparate impact on African-Americans since no African-Americans qualified for promotions. By this time, it was too late for the City of New Haven to protect itself from liability. The City now found itself stuck between a rock and a hard place. If they did nothing and promoted the firefighters that received the highest grades on the test they would be faced with a disparate impact Title VII race discrimination lawsuit. If they decided, as ended up happening, that they would not use the test because African-Americans did not pass the test, they would be faced with a lawsuit under Title VII for disparate treatment race discrimination because they had now made an employment decision based upon race rather than job-related criteria. Basing employment decisions based upon race is prohibited by Title VII. Title VII prohibits discrimination in employment based upon sex, race, color, national origin and religion.
The real answer was to have conducted the validation study prior to administering the test so that they could have remedied the problem without violating Title VII. Employers should learn from the City of New Haven’s mistake by understanding that they must be proactive and conduct validation studies prior to administering employment tests such as these. In addition, employers should now recognize how important it is to take the proper steps and precautions before taking employment actions. For more information on tips that will be helpful to employers in managing their employees, please visit our website at www.hrlearningcenter.com