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Current Legal Issues in Employee Selection

Ricci v. DeStefano (2009)

Despite decades of litigation and federal regulatory efforts, employment discrimination cases are still commonplace. In this respect, Ricci v. DeStefano (2009) is one high-profile case that demonstrates this.

In this action, the New Haven Fire Department was administering a promotional test which no Black/African-American employee had passed. Even though there was no clear evidence of a technical issue or problem with the test, New Haven invalidated it on the basis of potential liability due to its disparate impact. The Supreme Court then ruled for the plaintiffs, a group of White and Hispanic candidates who passed the test but were not promoted, on the basis that there was demonstrated evidence of validity and that the city did not have a ‘strong basis in evidence’ that it would have created liability by promoting the White and Hispanic candidates.

Many selection practitioners were frustrated that the Supreme Court had failed to consider the use of alternative measures that would have been available to the department. While there was some evidence of validity for the existing test, there might have been equally valid measures that could have fostered greater diversity among the group that passed, and if diversity was valued by the Fire Department, they might have chosen one of those alternatives. Another interesting issue arising from this ruling was that the disparate impact due to race was apparently an insufficient reason to abandon the use of the test. This, along with other recent rulings by the Supreme Court regarding affirmative action programmes, suggests that a more colour-blind viewpoint is being adopted by the Court and that efforts designed to increase workplace representation are being viewed differently from those in previous decades (Bellenger & Yusko, 2015).

One outcome of the case was for many employers to reconsider test-weighting strategies. Prior to Ricci, employers sometimes considered multiple methods of weighting test items and exercises, then, given equal validities, selected the method that produced the most diversity among the pool of successful candidates. After the Supreme Court’s ruling, some jurisdictions determined that they could no longer follow such a weighting procedure due to concerns about making a race-based decision after the test had been scored. Practitioners should monitor such rulings to ensure that they do not put their organization at risk (Bellenger & Yusko, 2015).

Some have argued that cases such as this represent a more colour-blind approach on the part of the courts or, more extremely, a general mindset among Whites that there is an anti-White bias. Consistent with this perspective, Norton and Sommers (2011) found that Whites perceive an anti-White bias more than they do an anti-Black bias. This may have important implications for EEO cases going forward. Specifically, there is the potential for greater conflict between affirmative action policies and anti-discrimination laws (Thompson & Morris, 2013).

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