Employers who use tests to hire or promote employees now face a tough dilemma if those tests end up significantly disfavoring minority workers. If the employer uses the test results, it could be sued by the minority workers on the grounds that the test had an unfair impact on them. On the other hand, if the employer throws out the test results, it could be sued by the non-minority workers on the grounds that they did better on the test and were discriminated against based on race. That’s the result of the Supreme Court’s recent decision in a case involving Connecticut firefighters.
In that case, the fire department threw out its test results because no black employees qualified for a promotion. The department was then sued by white and Hispanic firefighters who did well on the test. The Supreme Court okayed the firefighters’ suit.
The Court said an employer can’t disregard its test results unless there is strong evidence that if it went ahead and used the test results, it would be liable for discrimination. But this puts employers in a Catch-22, because employers don’t always know in advance whether a court will think the evidence is strong enough.
There’s no clear solution for employers. Any employer who is using (or thinking of using) an exam for hiring or promotion should be very cautious. The best advice is to be extremely careful to make sure any tests or standards are legally fair at the outset, because adjusting the results later is a dangerous thing to do.