If you haven’t already heard about the pending Supreme Court case of twenty white firefighters in New Haven, CT, who claim discrimination on the basis of an employment test – you soon will!

The case revolves around a test given to approximately forty fire fighters who aspired to move into a senior leadership role within the service. While the test was designed to have no “disparate impact” based on race, the test results showed that the white candidates all passed while the great majority of the Black and Hispanic candidates did not.

The town, fearing a discrimination lawsuit from the minority candidates, dropped the processes entirely and promoted no one. That move resulted in the white candidates bringing suit against the town for reverse discrimination.

The case is all the more interesting as one of the appeal court judges who turned down the white firefighters appeal was none other than Sonia Sotomayor, President Obama’s candidate for the Supreme Court.

What are the implications for talent management practices? At the very least, organizations using assessments or tests for hiring or promotions need to be even more mindful of the potential pitfalls associated with “disparate impact” resulting from candidate testing.

The law says an employer can be sued for using a hiring or promotional standard that has a “disparate impact on the basis of race,” unless it can be defended as a “business necessity.”

So what are the options for organizations who want to use tests or assessments as part of the hiring or promotion process? One way to minimize the risks is to consult an expert in the field of tests and assessments to make sure that the tests that you are using meet with the “Uniform Guidelines for Employee Selection Procedures” published by the EEOC.

Be sure that the consultant you use is a member of a recognized professional body, such as the Society for Industrial and Organizational Psychology, and covered by their code of ethics. There are a lot of test and assessment companies out there, many with products with questionable validity and reliability. When using such tests it is very much a case of “caveat emptor” – let the buyer beware!

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