Race Based Employment Decisions

As an employer, you want a diverse and drug-free workplace. So, you test employees to ensure that everyone is drug-free, or get the job or promotion. So…what do you do when you discover that one of your tests or policies has an unintended effect of creating an “adverse impact” on another race? Can you correct your decision by make another decision based on race?

The United States Supreme Court has said NO! Of course, as often happens in Supreme Court decisions, in the decision in Ricci v. DeStefano, the Court provides a lot unsaid, but one thing is abundantly clear. If you are going to use employment tests at any stage of the employment process, you need to be absolutely sure that your test (or policy) is neutral with no intended disparate impact on race, sex, age, national origin or disability.

How you design and validate any test you use is critical, and if done properly, use of a test will never get you or your business in a situation where an employee can prove that you intentionally discriminated based on a protected class. On the other hand, a test that is not validated to have a neutral impact is an open invitation to get hit with a significant court judgment cost your business financially and in image.

See: EEOC Employment Tests and Selection Procedures
Ricci V. DeStefano, 07-1428 (U.S.S.C. 06/29/09)