Selection and Testing: What you need to know

Under Title VII of the Civil Rights Act of 1964 (Title VII), employers may use “any professionally developed ability test,” provided that the results are not used to discriminate on the basis of race, color, religion, sex, or national origin.
Disparate treatment. Title VII prohibits intentional discrimination based on protected characteristics. Requiring only members of a protected group to take certain tests is an example of disparate treatment that violates Title VII.
Disparate impact. Tests that are facially neutral but have a disproportionately adverse effect on a protected group also violate Title VII, unless the test is job-related and justified by business necessity.
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The U.S. Supreme Court has ruled that an employer violates Title VII if it takes an intentionally discriminatory action because it fears liability for disparate impact discrimination, unless it has sufficient evidence to show it will, in fact, be subject to disparate treatment liability (Ricci v. DeStefano, 129 S.Ct. 2658 (2009)). In this case, a city tested its firefighters to identify the best qualified candidates for promotions to vacant captain and lieutenant positions. The test results showed that white firefighters outperformed minority candidates, and the city discarded the test results based on the statistical disparity and its concern that minority candidates would bring a lawsuit claiming disparate impact discrimination in violation of Title VII. The white firefighters who had performed well on the exam brought a lawsuit claiming the city intentionally discriminated against them on the basis of race. The Court ruled that before an employer engages in intentional discrimination for the purpose of avoiding an unintentional disparate ...

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