High-performance Workforce

The recent nomination of Sotomayor to the Supreme Court has increased the discussion of employment law.  Sotomayor concurred but did not author the judgment in the appeal of Ricci vs. Destefano, which continues to inspire many complaints about reverse racism and judicial activism.  Ricci is a white firefighter for the city of New Haven who had dyslexia and paid approximately $1000 for assistance to train for employment exams.  Destefano is the mayor of New Haven, Connecticut and is alleged to have political motivations for keeping white firefighters from being promoted.  Although I will not typically blog about legal issues, I can give some insight about employment law and why your organization needs to pay attention to personnel selection.

In order to build a high-performance workforce, it is necessary to hire the best potential employees and to promote the most suitable managers.  However, building a set of personnel selection screens to obtain the best individuals for these roles can be tricky, especially in a governmental organization.  The city of New Haven, Connecticut has experienced legal actions due to their efforts to comply with anti-discrimination laws.  New Haven attempted to create a test that was non-discriminatory, but the hiring process made clear that the results of the test violated the four-fifths rule which could immediately open the city to a lawsuit from adversely impacted minorities.

The four-fifths rule is a litmus test for a discrimination case.  If the rate of minorities passing the test is less than 80% of the rate of whites passing the test, then it opens the door for litigation.  The four-fifths rule does not mean that discrimination occurred, only that a review of the situation may be warranted by the court.

In the case of Ricci and his fellow plaintiffs, the four-fifths rule was violated.  The subsequent investigation showed that the test was not uniformly supported by experts as non-discriminatory.  The underlying reason for the discrimination was not well understood, but could have been influenced by differences in access to training materials and mentoring.  The formulation of oral and written exams was also questioned, as an uninvolved consultant suggested that an assessment center could be used to assess the candidates with new tests.
New Haven has not promoted anyone because of the violations of the four-fifths rule.

Ricci asked the courts to force the city to proceed with a plan to promote individuals who passed the tests, alleging that their rights were violated and that they were discriminated against because the city did not use the results of the test as a basis for promotion.  The city of New Haven was caught in a darned-if-you-do, darned-if-you-don’t trap of certainly discriminating against minorities in violation of the Civil Rights Act as amended in 1991, while frustrating the white firefighters that were seeking a promotion.

Organizations that want to create high-performance workforces should take a number of lessons from this case and related employment law cases:

1. If a test is flawed, discard the results: Taking no action to hire or promote based on a flawed selection or promotion test will shield an organization from losses in court.  In this case, the courts have clearly sided with the organization in the face of reverse discrimination claims because the organization set aside the test when violations of the four-fifths rule occurred.  The courts believed that this showed organizational good faith in upholding the Civil Rights Act.
2. Don’t add additional hurdles; use the test as designed: Layering rules and procedures atop of a selection procedure intended to be non-discriminatory can induce discrimination.  New Haven did use a consulting group to construct a test that should have been without discrimination.  However, the discrimination created by differences in protected- and non-protected-class test outcomes was exacerbated by additional city-imposed rules and regulations.  New Haven added regulations to promote only from applicants with the top three test scores, not from the entire applicant pool that passed the test.  The top ten scores were white applicants, leaving New Haven in an impossible situation.  The percentage of minorities that passed the test was larger, though still insufficient to avoid entanglement in the four-fifths rule.  Each hurdle must pass the four-fifths rule muster.
3. Have more options prepared in case the worst happens: Public organizations that are especially sensitive to discriminatory practices (for instance, fire fighting and police organizations) should attempt to create a back-up promotion or hiring plan in order to quickly contain the consequences of a failed selection procedure.  This may mean reformulating the weights of portions of the selection procedure or it may mean removing portions of the test that are found to be discriminatory and requesting that the test be re-taken by the applicants.  Though there is no guarantee, quickly providing a back-up process that is not discriminatory might prevent a lengthy court battle.

There was no judicial failure or activism in the Ricci vs. Destefano case.  The judges involved with both the trial and appeal rightly found that the court was required to uphold the Civil Rights Act.  The white firemen have not experienced discrimination because no one was promoted.  The true losers of the New Haven fireman controversy are not only the white plaintiffs and the minorities that were probably excluded from promotion under the test in question, but the city as well.  The city has now been unable to promote anyone for years while the suit plodded through the court.  The city has also had to spend a massive amount of money to defend its actions in the judicial system.

It seems likely that the outcome could have been prevented if a well-validated set of tests had been used.  In this context, personnel selection techniques are employed for the purpose of risk prevention rather than maximizing individual and organizational performance.  In most instances, however, the simultaneous goals of avoiding legal jeopardy and maximizing performance can be attained.

As for Sotomayor, she dissented in favor of a white racist in order to protect his first amendment rights – hardly the act of a supposed racist Latina.