Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

Attorney John Williams is well-known in this state for his avid representation of various state workers -- particularly state police officials -- in discrimination matters.  Yesterday, he held a press conference to announce that he will be filing a class action lawsuit in a few weeks challenging the hiring procedures of the Connecticut State Police.

The Hartford Courant has the details in an article this morning:

Racism is so entrenched in the Connecticut State Police that basic hiring practices ensure only a few minority troopers will even enter a training class, never mind be promoted in the ranks, an attorney representing a black troopers' coalition said Thursday.  ...

Only candidates who score at least 85 out of 100 on a written test are chosen to continue training, even though the passing score is 65. That practice discriminates against members of minority groups, Williams said.

Public Safety Commissioner John A. Danaher III vehemently denied Williams' accusations and defended the department's hiring practices, saying they are fair and blind to race. He also said he has taken steps since becoming commissioner to recruit more members of minority groups, including reaching out to more colleges and forming a selections unit that is largely minority.

WTNH has this report on the subject, as does the AP.  Because the complaint hasn't be filed yet, it is too early to tell the exact legal theories and arguments that will be used in the case, but it appears to be following a well-worn path of what are known as "disparate impact" cases.

So what is "disparate impact"? Well, when most of us hear of discrimination cases, they are known as "disparate treatment" cases, not "disparate impact" cases. These cases allege that someone intentionally discriminated against them because of a protected class (race, gender, etc.)

"Disparate Impact" cases are something different.  LawMemo has a nice little summary in its blog:

Disparate impact is the idea that some employer practices, as matter of statistics, have a greater impact on one group than on another.

A good example, taken from the first US Supreme Court Title VII case on the topic: When hiring laborers, the employer required applicants to have a high school diploma. The diploma requirement screened out vastly more blacks than it did whites. Therefore, there was a disparate impact based on race, even though there was no intentional discrimination.

The Supreme Court said that once the employees proved a significant disparate impact, the burden shifted to the employer to prove that the diploma requirement had "a manifest relationship to the employment in question."

Federal legislation enacted in 1991 says that if the employees prove that a practice causes a disparate impact, then the employer must demonstrate that the practice "is job related for the position in question and consistent with business necessity."

The allegations being raised by Attorney Williams are similar. He appears to be saying that the decision to screen applicants based on their score of a written test has a disparate impact on black applicants.  The EEOC has issued some guidance on employment tests that shed further light on the subject:

Moreover, as the EEOC notes, in 1978, the EEOC adopted the Uniform Guidelines on Employee Selection Procedures or “UGESP” under Title VII.  UGESP provided uniform guidance for employers about how to determine if their tests and selection procedures were lawful for purposes of Title VII disparate impact theory:

UGESP outlines three different ways employers can show that their employment tests and other selection criteria are job-related and consistent with business necessity. These methods of demonstrating job-relatedness are called “test validation.” UGESP provides detailed guidance about each method of test validation.  

In general, disparate impact cases are typically long drawn out cases that rely, in good measure on statistical analyses by experts.  They are costly and time-consuming affairs.  Thus, don't expect a quick resolution to the claims raised in this new lawsuit.  Indeed, the State Police will likely spend lots of time arguing that the standards it uses are "job related" and "consistent with business necessity".   Who will prevail? Stay tuned....

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Although I've touched on the issue of personality tests before here and here, I was recently interviewed in the December 2007 issue of Law Office Administrator (published by Ardmore Publishing) about some further specifics. 

In it, I highlight two important points that employers should consider before using them:

1. Why Is the Test Being Used? and,
2. Does the Test Exclude Certain Categories of People?

If you don't know why you are using the test, the obvious followup is how can you possibly use the test effectively if you don't know why you are using it.  Is it to screen out certain applicants? Is it to look for certain intangibles (like team building)?

In addition, you need to understand if the test affects certain classes of people differently. Some differences are okay (you're trying to distinguish lazy employees from driven employees), but if the test results exclude categories of people in protected classes (older workers, for example), then they should not be used.

Personality tests have been around for a while. I would suggest that one reason why they haven't become commonplace is that there are too many variables with them for many employers comfort.  If you do decide to use them, understand the risks ahead of time. 

My colleagues, Ana Salper and Rebecca Brandman, also wrote an article on the EEOC's recent guidance on personality tests, which I covered a few weeks ago .  It's worth a read. 

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In one of my first  posts, I highlighted an article regarding the legality of personality tests.  In it, I noted that the EEOC had held a fact-finding session and was likely going to issue some further guidance.  Well, that day has arrived.

The EEOC issued a fact sheet on employment testing today, announced in this press release.  The fact sheet, which can be accessed here, contains all sorts of helpful information for employers, including a best practices approach and a primer on the applicable federal laws.  Suffice to say that some of the suggestions are fairly obvious, but here they are:

• Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.
• Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under [applicable procedures].
• If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group.
• To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly.
• Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored.
  

As I noted previously, Connecticut does not have any major caselaw on this topic. Moreover, courts here will typically mimic federal law anyways, so it is certainly a good idea to familiarize yourself with the topic and implement the best practices recommended by the EEOC for these types of tests. As the year comes to a close, it's a good idea anyways to audit your personnel policies and procedures to ensure that they are compliant with current law.

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The Connecticut Lawyer has an interesting article in the last month on the Legality of Personality Tests under the ADA. The article, written by Connecticut Bar Association member Joshua Hawks-Ladds, "explores the ADA's impact on personality testing in the workplace, and discusses what type of assessment tools will withstand ADA scrutiny and when these tools can lawfully be implemented." As Joshua notes, the ADA prohibits employers from "using tests or questionnaires that are meant to, or that incidentally, result in discrimination against disabled individuals."

What remains unanswered from the article (and outside its scope) is how prevalent testing really is, particularly in Connecticut. The article does not cite any Connecticut cases or Second Circuit cases.

An EEOC meeting on May 16, 2007, shows however that this is a topic of increasing interest. As noted in their press release:

The U.S. Equal Employment Opportunity Commission (EEOC) today held a public meeting to gather information and address emerging trends in workplace testing and selection procedures, as employers seek lawful and efficient ways to screen large numbers of applicants. Discriminatory employment tests and selection procedures violate EEOC-enforced federal laws, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act.

“Today employers commonly use a range of employment tests and other screening tools to make hiring, promotion, termination or other employment decisions,” said EEOC Chair Naomi C. Earp. “With the growth of technology, buttressed by post-9/11 security concerns, it is important that employers review their applicant selection procedures to ensure they are non-discriminatory.”

If employees and employers are looking for topics that have yet to be fully litigated or explored, the use of personality tests seems ripe for consideration.

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