Speaker’s Corner – September 2009

Ricci Ruling and Its Impact on Selection & Assessment

Panel Discussion:

Moderator: Edward Pavur

Panelists: Kathleen Lunquist, cofounder of APT, Inc., expert witness for defendants and plaintiffs in discrimination cases; Harold Goldstein, Professor at Baruch College, researches leadership and adverse impact; Bill Perkins, attorney at Sheyfarth Shaw, works with defendants in adverse impact cases

Ricci Case Summary

The City of New Haven decided not to promote firefighters, despite their performance on the selection exam, because the test resulted in mostly white promotions (only 2 Hispanics promoted and 0 African-Americans). The District Court and Court of Appeals decided the City of New Haven was right in not promoting any of the firefighters due to concerns over minority bias. The Supreme Court then reversed the decision, “crafting a new legal standard for this type of Catch-22 situation.” The City discriminated against the firefighters who were supposed to be promoted based on the test.

“Reverse Discrimination”

The panel discussion started out with the question of “reverse discrimination.” Kathleen Lunquist noted that the notion of equal employment has ramifications for whites, not just for minorities. However, she also noted, based on her experience, that companies would prefer a reverse discrimination claim over a discrimination case against minorities. Harold Goldstein brought up how this Supreme Court decision represents the sentiment of the general public and that the courts are now catching up to the community.  When trying to prevent bias to minorities, ramifications against the other side should be taken into account.

Was the test really valid?

A validity test was never done. Validity was simply assumed by the judge. Rather than base the test’s validity on empirical evidence of validity, the judge deemed the test valid because there was no evidence otherwise. This lack of respect for our measures of determining validity was appalling to the panelists and METRO members in attendance.

Content validity should be the focus, not adverse impact

Most of the work to develop fair selection procedures centers on preventing adverse impact, but this case illuminates that the focus should be on the content validity of the selection instrument, not how it affects minorities. The consequences of selection procedures are legally essential, but preventing unfairness is a product of its validity. When we focus on the results of a test and lose sight of the content, we are not developing an entirely fair test. Kathleen noted: “Are you running a numbers game, or are you hiring people based on adequate criterion?”

Public versus private sector weighting standards

The public sector’s hiring standards often stem from collective-bargaining agreements negotiated with unions, and so applicants are aware of what to expect. The City of New Haven’s standard was a weighting of 60:40 between the written and oral exams, respectively. Research has shown that minorities often do better on oral exams compared to written ones. If the weights were shifted to 30:70, two black candidates would have been selected. The private sector, on the other hand, often does its weighting behind closed doors and can change the weights in favor of results that reduce adverse impact against minorities, thereby presumably adversely impacting non-minorities in the process. Because the Ricci case was based upon the hiring standard of the public sector and their public standard, the “reverse discrimination” case was able to make a stamp in the legal system and in our field.

Other intriguing questions discussed

Assuming our tests are valid, are they being implemented correctly by the organization?
Are we trying to build cutting edge tests? Are our tests really masterpieces?
How much do political factors play into these results?

Reported by Ashley Busing