When is a Rose a Rose?

I have often thought (and said) that the term "reverse discrimination" is a misnomer.  Unlawful discrimination is unlawful discrimination. It does not pick and choose which subgroups within race, gender, religion, etc. are protected.  An employment action that is based upon an individuals' race, including being Caucasian, or gender, including being male, may be just as unlawful as the same act directed toward a minority or female.  In 2007, Chief Justice John Roberts wrote in a majority opinion on this topic, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Parents Involved in Community Schools v. Seattle School District No. 1  

On June 27, 2009 the U.S. Supreme Court ruled that the New Haven Connecticut (City) violated Title VII of the Civil Rights Act of 1964 when it refused to certify test results that would determine eligibility for promotion because white candidate firefighters scored higher than than minority candidates. White and Hispanic firefighters who were subsequently denied promotion because the test results were not certified then filed suit. Ricci et. al. v. DeStefano et. al

The City's defense was that it was caught between a rock and a hard place; if it certified the test results, minority candidates threatened to file suit that the test results discriminated against them and there was a statistical disparity that seemed to support that contention.  In addition, Title VII does permit an employer engage in intentional discrimination to avoid disparate impact (unintentional discrimination) if the employer "has a strong basis in evidence that it will be subject to disparate impact liability if it fails to take the race-conscious discriminatory action."

To try and make this long (92 page) story short, the Court held as it did despite the fact that the statistics showed "strong statistical disparity" that is not enough to establish that the City has a "strong basis" for believing it would be subject to liability for adverse impact.  Why?  Because the evidence showed that the test was, in fact, job related and consistent with business necessity and there appeared to be no less discriminatory alternative the City could have reasonably used at that time to assess candidates qualifications.  

Lessons Learned:

1. If your company uses any type of employment related test or assessment for candidates or employees and you are a covered employer under Title VII of the Civil Rights Act (generally employ 15 or more employees) be sure you are tracking your test results, by gender and race, for adverse impact as required under the Uniform Guidelines on Employee Selection Procedures (UGESP).  Whichever protected group has the highest pass rate (as you have defined it) every other group should have a pass rate of at least 80% of that rate.
2. Be sure your tests or assessments are, in fact, job related.  Employers are permitted to use "home-grown" tests or assessments, that it those developed in-house as opposed to being purchased from a consultant. You may be able to better tailor your own assessment to job-related factors and you may also not have the "validation" studies that external vendors and provide.  Thus, the importance of #1 above.
3. Even if you "get it right" it does not mean your company cannot be subject to litigation; but do not make the wrong decision simply out of fear of litigation.  As the Court wrote, "Fear of litigation alone cannot justify the City's...       [d]iscarding the test results." 

Click here for more information, including Q & A, on the UGESP.    

Hot Hits!! Education Corner

August's Public Seminars & Presentations

presented by Christine V. Walters, MAS, JD, SPHR

Wednesday, August 12th, "Employment Law Update," sponsored by the Right Management HR/OD Professionals in Transition," Hunt Valley, MD, 8:00 - 9:30.

NEXT WEBCAST!

"Disability Discrimination: Do's and Dont's for Employers"       

August 26th, 10:00 - 11:00 a.m. EST

This program provides an overview of various methodologies and strategies for assessing workplace performance. Should you use an objective or narrative rating methodology? Should you use an even or odd numbered rating scale? Or none at all? What are the legal pitfalls to avoid and the human aspects to consider? How do you emphasize the value of the appraisal separate and apart from any wage increase? What about giving and receiving continuing feedback throughout the year? This program will address these and a variety of other issues. Click here to register or for more information.

NOTE: THIS PROGRAM HAS BEEN PRE-APPROVED BY HRCI FOR 1.0 GENERAL CREDIT HOUR.

Use of this seal is not an endorsement by HRCI of the quality of the program. It means that this program has met HRCI's criteria to be pre-approved for recertification credit.

EFFECTIVE AUGUST 2009!!!  FiveL Company's webcasts that are archived in and after this month will be eligible for continuing education credits through HRCI !

 EEOC Hears "Devastating Impact" of Age Discrimination

On July 15, 2009 the U.S. Equal Employment Opportunity Commission (EEOC) held a hearing that included testimony from expert panelists who urged regulatory and legislative action clarify, modify and enhance enforcement of the Age Discrimination in Employment Act, which prohibits discrimination in employment against individuals on the basis of being age 40 or above and generally applies to employers with 15 or more employees. 

Simultaneously, the EEOC published a guidance for employers, "Understanding Waivers of Discrimination Claims in Employee Severance Agreements."  While the document is written for an employee-audience, it is worth a perusal by business owners, managers and HR professionals to ensure you understand the basics of these agreements, what they must include and in which circumstances (individual versus a group termination; for persons under age 40 or 40 and above).  

Why now?  Much of the testimony came from "experts in age discrimination law and policy" and addressed age-based stereotypes that may result in older workers not only being targeted for layoff as compared to younger workers but also making it harder for them to find new employment. 

   Question of the Month