When an employment test violates the Civil Rights Act – an employer’s dilemma

When an employer is looking to promote employees, standardized testing can be a great way to help choose which employees best fit prospective positions. The process allows for an objective evaluation of an employee’s skills and competency. Using such an unbiased measure can help to ensure that employment decisions are based on merit, allowing the most qualified candidates to attain the appropriate positions. The problem for employers, as shown in the recent Supreme Court decision, is when the test proves to not be as unbiased as the employer hoped.

In 2003, the City of New Haven, Connecticut was looking to make promotions within its fire department. Exams were administered with the understanding that the results would be used to determine who would be considered for advancement. The tests were prepared by an outside agency and were certified to be racially neutral. 118 firemen took the examination. The results of the test showed that of the 27 black firemen tested, not one would have been considered for a promotion.

Confounded by the result, the city decided to throw out the results of the test. The concern was that using the test scores might be deemed to violate the 1964 Civil Rights Act, which forbids employment practices that have a disparate impact on minorities.

However, the same legislation also prohibits intentional racial discrimination. Accordingly, the firefighters who would have qualified for the promotion sued the city claiming the decision to invalidate the exam was based solely on race.

Ultimately, the Supreme Court agreed with the aggrieved firemen that the city violated their rights. The Court recognized the difficult situation facing the city but reasoned that taking the race-based action would only be warranted if there existed a “strong basis in evidence” that using the test scores would result in the city being held liable in a disparate impact lawsuit. The city did not produce such evidence to meet this burden.
    
The important lesson for employers to take away from this case is that decisions predicated on race do not have to have sinister motivations to be unlawful. In this case, New Haven was trying to operate in the spirit of the Civil Rights Act, however, unfortunately, in doing so, they violated that very law.