If you read last week’s post here at The Emplawyerologist, you know the EEOC‘s position on pre-employment testing. Therefore you now know that even a pre-employment testing procedure or requirement, while itself neutral might still be ruled discriminatory if it disproportionately excludes from employment or promotions, certain classes of people protected by Title VII of the Civil Rights Act of 1964. . Click here for a review. What if anything does the US Supreme Court have to say about pre-employment testing procedures and disparate impact, and what can employers do to minimize its risk of being caught in the crosshairs? Read on to find out!
The US Supreme Court first weighed in on this subject in 1971 in Griggs v. Duke Power Co. 401 US 424. Before July 2, 1965, the effective date of the Civil Rights Act of 1964, Dukes openly engaged in discriminatory employment practices. The company first had a policy of requiring a high school diploma for positions in all but one department, and later added a requirement that candidates pass an intelligence test. While applying equally to all races, both requirements essentially disqualified African-Americans at a significantly higher rate than Caucasian applicants. This case established the principle that an otherwise neutral practice can still be violative of Title VII if it has a discriminatory impact on one or more groups protected under Title VII (or other EEO laws) and is not job-related and/or cannot be justified as a business necessity. Twenty years later, Congress passed The Civil Rights Act of 1991 to expressly prohibit practices having a disparate impact on classes it was intended to protect. You can see therefore, that analyzing the impact of hiring practices actually originatedwith the US Supreme Court, not the EEOC.
Does this mean that any time they an employer engages in a neutral practice that might happen to disproportionately exclude one group more than another it has to worry about a discrimination claim? No The US Supreme Court has addressed that very issue twice in the last 32 years and has clearly held otherwise in 1989 in Wards Cove Packing Co., Inc. et al v. Atonio et al, 490 US 624 (1989) and, more recently in Ricci et al v. DeStefano et al 557 US ___ (2009).
Wards Cove Packing Co., Inc., et al v. Atonio et al involved employment practices by two salmon canneries in Alaska. Nonwhite, (Filipinos and Alaskan natives) mostly held unskilled jobs in the canneries, whereas the skills, higher-paying jobs generally went to white candidates. A class of non white cannery workers sued under Title VII under both disparate treatment and disparate impact theories of liability. The issue before the US Supreme Court was whether significant statistical disparity in hiring by itself is sufficient to render pre-employment practices and procedures discriminatory. The Court answered in the negative. The evidence showed that the lack of minorities holding skilled positions was due to a lack of qualified minority candidates and that the shortage was not the employers’ fault. As long as the employers were not imposing barriers to or practices that deterred qualified minorities from holding the more skilled, higher-paying noncannery positions, if the percentage of minority candidates was significantly less than the percentage of qualified minority applicants, the court reasoned that the selection mechanisms used by the canneries did not operate with a disparate impact on minorities.
Similarly if an employer can show that testing procedures are job-related and consistent with a business necessity, does a threshold showing of racial disparity between those who pass the test and those who do not require an employer to do away with such tests or procedures? Can fear of a lawsuit alleging disparate impact, without more, justify intentional “reverse” discrimination. Here too, the US Supreme Court answered in the negative in Ricci et al v. DeStefano et al 557 US ____, 129 S. Ct 2658 (2009). This relatively recent case involved firefighters in the City of New Haven, CT, who applied for promotions to lieutenant and captain positions. When the results showed that significantly more Caucasians than African-Americans and Hispanics passed the exams and thus qualified for the promotions, the City, fearing a lawsuit based on a disparate impact claim, refused to certify the results. Firefighters who qualified and were not promoted sued, alleging intentional, disparate treatment discrimination. The Court agreed and held that the City’s actions violated Title VII. The Court held that an employer must be able to show a strong basis in evidence that such remedial actions were necessary. What would constitute “a strong basis in evidence”? A showing that the exams were not job-related and consistent with business necessity and that equally valid, less discriminatory testing alternatives were available. The evidence showed that the exams were in fact job-related and consistent with business necessity. Evidence of equally valid, less discriminatory alternatives was lacking. Fear of litigation by one group therefore does not by itself justify discriminating against another.
The good news for employers is that statistical disparities in hiring, standing alone do not subject employers to liability based on disparate impact. What can employers to do minimize lawsuits and/or liabilities for either disparate treatment or disparate impact discrimination? Here are some precautions, suggested by the EEOC:
- Administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age or disability. This is fairly self-explanatory, and will protect against disparate treatment allegations.
- Ensure that tests and other selection procedures are properly validated for jobs and purposes for which they are used (i.e. job-related with results appropriate for the employer’s purpose). Note that while test vendors’ documentation supporting the validity of the test is helpful, employers are still responsible for ensuring a test’s validity under the Uniform Guidelines on Employee Selection Procedures. This was the specific issue in Ricci. The tests were validated by experts as appropriate for their stated purpose.
- If a selection procedure screens out a group that is protected by Title VII or similar EEO laws, determine if an equally effective alternative procedure that has or would have a less adverse impact on such a group is available and adopt that procedure. If no such procedure is available then the selection procedure in question will likely pass muster.
- Stay on top of changes in job requirements and update test specifications and/or procedures accordingly. While selection procedures may be relevant to today’s job requirements, failure to at least re-evaluate selection procedures in accordance with changes in job requirements can once again render an employer at risk of discrimination liability. This is an example of an ounce of prevention being worth a pound of cure.
- Ensure that managers understand effectiveness, limitations and appropriateness of test/selection procedures for specific jobs and whether they can be appropriately administered and scored. In other words, train and sensitize your managers.
While employers still have a balancing act, these cases provide some encouraging news. How does the ADA apply to pre-employment testing? Find out next week!
Are you in the staffing industry? Do you use staffing agencies to meet your staffing requirements? If so, click here to read my latest post about how the ADA applies to “temps” on The Staffing Stream , a blog published by Staffing Industry Analysts.
Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.
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