Preventing workplace violence and other terrible events are important, but it should be kept in mind that they are outlier events. Humans often over-estimate the likelihood of crime based on over-exposure in the media, believing that they are much more likely to be a victim than is reasonable. Additionally, the average award estimates for negligent hiring do not seem well documented and neither do the percentage of lawsuits lost. I have no doubt that they are fairly high, but I would prefer to see documentation of the cost and loss estimates from researchers rather than employment screening vendors.

These negligent hires do occur. Academics have largely ignored this problem because the rarity of workplace violence makes the such studies difficult. Often, academics (such as Harris & Keller (2005)) more or less advocate hiring of ex-felons in order to reduce recidivism. In their article “Ex-offenders need not apply”, Harris and Keller found that:
(a) several risk factors must be present in order to be predictive – so one factor, such as a previous conviction, was not predictive of future behavior;
(b) criminals do not “specialize” in one criminal act and are not likely to be repeat the same crime;
(c) ex-criminals are more likely to have cognitive, personality, and social deficits that make them questionable performers;
(d) criminal background checks are haphazard due to a patchwork of state laws;
(e) research does not support the notion that ex-criminals perpetrate workplace crimes more often than “normal” employees; and
(f) placement of multiple ex-criminals together was more likely to induce criminal behavior.

Organizations have clearly come to the conclusion that mitigating risk by implementing background checks is often necessary, much like drug tests. However, instead of merely testing employees for drugs and searching their background for criminality, HR departments should make the case that the prevention of lawsuits and accidents are not any more important that screening to maximize individual performance. Legal departments have a responsibility to reduce risk, and HR departments do as well – but HR departments also have a responsibility to maximize the effectiveness of the workforce.

If your company is considering implementing such background checks, make sure to argue that it is not only important to screen out the duds, but to select for your next superstar. Your company’s future may depend on it.

The racial adverse impact in this litigation was significant, and petitioners do not dispute that the City was faced with a prima facie case of disparate-impact liability. The problem for respondents is that such a prima facie case—essentially, a threshold showing of a significant statistical disparity, Connecticut v. Teal, 457 U. S. 440, 446, and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the test results. That is because the City could be liable for disparate impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. Based on the record the parties developed through discovery, there is no substantial basis in evidence that the test was deficient in either respect.

Take home message: Job relatedness in promotion and selection as a viable defense in discrimination has been strengthened in this case by the Court.

The City’s assertions that the exams at issue were not job related and consistent with business necessity are blatantly contradicted by the record, which demonstrates the detailed steps taken to develop and administer the tests and the painstaking analyses of the questions asked to assure their relevance to the captain and lieutenant positions. The testimony also shows that complaints that certain examination questions were contradictory or did not specifically apply to firefighting practices in the City were fully addressed, and that the City turned a blind eye to evidence supporting the exams’ validity.

Take home message: Again, job relatedness in promotion and selection as a viable defense in discrimination has been strengthened in this case by the Court.

Respondents also lack a strong basis in evidence showing an equally valid, less discriminatory testing alternative that the City, by certifying the test results, would necessarily have refused to adopt. Respondents’ three arguments to the contrary all fail. First, respondents refer to testimony that a different composite-score calculation would have allowed the City to consider black candidates for then open positions, but they have produced no evidence to show that the candidate weighting actually used was indeed arbitrary, or that the different weighting would be an equally valid way to determine whether candidates are qualified for promotions. Second, respondents argue that the City could have adopted a different interpretation of its charter provision limiting promotions to the highest scoring applicants, and that the interpretation would have produced less discriminatory results; but respondents’ approach would have violated Title VII’s prohibition of race-based adjustment of test results. Third, testimony asserting that the use of an assessment center to evaluate candidates’ behavior in typical job tasks would have had less adverse impact than written exams does not aid respondents, as it is contradicted by other statements in the record indicating that the City could not have used assessment centers for the exams at issue. Especially when it is noted that the strong-basis in-evidence standard applies to this case, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) statements in the record.

Take home message: Get the selection procedure right the first time, or suffer through the legal process to determine if discrimination has occurred. Modifying the process after the fact is inappropriate, and re-testing implies that race in being taken into account.

Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

Take home message: Modifying the process after the fact is inappropriate, and re-testing implies that race in being taken into account. If discrimination occurred, then it will go to court; but interrupting the results of the test to prevent a law suit is inappropriate.

The practical outcome: This ruling strengthens employers’ hands by emphasizing job-relatedness exemptions and prohibiting the consideration of race in the selection and promotion outcomes. It is now more difficult for plaintiffs to prevail against employers who have designed promotion tests in accordance with job-relatedness principles. This ruling is somewhat disingenuous because of the need to evaluate the outcome based on the four-fifths rule for disparate impact on minorities. Ultimately, though, the ruling isn’t a huge change. The ruling does make it clear that courts will decide when there is adverse impact by removing employers’ discretion to scrap a selection procedure after a prima facie case of disparate impact has occurred. The Court essentially placed the burden on plaintiffs rather than the employer to take action.

The case caused a 5-4 split on the Supreme Court. It seems likely for this case to have determined the high-water mark of Title VII case law, as Court interprets the culture of the United States as reducing the need for preventative discrimination law. The Court is therefore increasingly inclined to allow discrimination law be eroded to some degree.

Recommendations for hiring and promotion practices: Create selection procedures in order to not discriminate, and if you become legally entangled, stick to your guns that you used job-relatedness to avoid the problem. If the procedures were followed correctly, promotions and hiring based on such tests will ultimately shield you in court.

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.