Testing has been increasingly popular in employment decisions.  So much money is riding on hiring the “right” employee, companies are hesitant to jump into a decision without as much information as possible.  Which leads us to psychological testing and employment law.

Employment Law is practically its own beast.  It’s hard to be a generalist in this area because the law changes so frequently.  Political maneuvering, legislative updates, and lawsuits all contribute to the changing nature of employment law.  Now, thanks to a recent Supreme Court ruling it may be changing again.

In a highly politicized and public case, white firefighters claimed that they were discriminated against because the results of a promotion test were thrown out.  The city (New Haven, CT) said, in essence, that since no minorities were identified as worthy of a promotion the test must be discriminatory.  New Haven stated they were concerned about the possibility of disparate impact (i.e., unintentional discrimination through the treatment of different groups of people).

So they threw out the test results.

The Supreme Court, through Justice Kennedy, said that in order to eliminate an employment test there must be evidence for it’s bias.  It was the lack of evidence that the Supreme Court ruled against New Haven.  Kennedy wrote, “there is no evidence — let alone the required strong basis in evidence — that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the city,”

Prior to this ruling the concern in employment law was from minorities.  If a test was unfairly promoting non-minorities, a city, company, or organization would be vulnerable to a law suit.  But now, this case may open up the opposite door – if a non-minority feels they didn’t get a job or promotion simply because of a fear of disparate impact (without the evidence) then they may also sue (and win).

In lecture I always stress the importance of validation.  If your test if valid, if you measure what you’re supposed to be measuring, your organization will be fine.

While this is still true, validation may be even more important than before.  It looks like if your test is not validated, then you may be opening yourself up to lawsuits from both minorities and non-minorities.

photo provided by stock.xchng:

Additional Thought:  One other point to consider – this Supreme Court ruling may open up some challenges of disparate impact to the 14th Amendment.  While the current ruling didn’t address the Constitutionality of disparate impact, it did weaken the position (according to some legal experts).

Related Information:  High Court Rules for White Firefighters in Discrimination Suit