If I were in the classroom, this case would be a real teaching moment.  In the build up to this perfect storm, we find a city government which conducts a valid selection test for promotion in the firefighter ranks, but when a group of minority candidates is not fairly represented among those who pass the test, a public outcry asserts the test had a discriminatory impact on the minority group. So, the city exercises due diligence and applies the criteria outlined in the EEOC Uniform Guidelines for Testing and finds that indeed, the test falls short, and decides to re-calibrate the test, as required by the guidelines, to avoid a lawsuit. But in trying to do the “right” thing, the City is then sued by the employees whose promotions were thrown out.

As the lawsuit proceeds, it reaches the Second Circuit where a panel of appellate judges finds for the City.  One of those judges is nominated for Supreme Court just as that court is hearing this case. Incidentally, she is Hispanic, and Hispanics are among the group suing the City.  Then yesterday, in a dramatic moment, the appellate court decision is not only overturned, but the established EEOC interpretive guidelines for Title VII are all but defied.

What the Supreme Court essentially did was provide wiggle room for the employer who follows the rules in constructing a fair test, but later discovers that the test adversely impacts a particular group. The Court said that an emphasis on discriminatory impact creates, in a roundabout way, discriminatory treatment, and Title VII was not intended to replace on form of discrimination with another.

Now what?

First, dear readers, the terms:

“Valid selection test” means that the test, on its face, does not appear to be discriminatory. No intentional discrimination is likely because the test conforms to the requirements of the testing guidelines.

“Disparate impact” means that unintentional discrimination is possible by virtue of the fact that a whole group of candidates from a protected class is disproportionately underrepresented among those who pass. Disparate impact differs from disparate treatment which is found when an employer designs the test, for instance, to screen out a certain class of candidates intentionally. Tests must be based strictly on job-related criteria. However, if a test that is not discriminatory on its face, is later found to impact a class or group disparately, the correction requires application of metrics that look at overall representation in a group, in ratio to the representation in the promotion group.

“EEOC Uniform Guidelines for Testing” are the interpretive guidelines that have been in force since the 1970s and guide employer practices with respect to testing, and contain both the metrics and the protocol for demonstrating good faith in creating and administering tests.

Take home lessons?

First, I think the dissenting members of the Court had some interesting things to say. Ginsberg, in particular, rejected the court’s reasoning that an employer’s attempt to correct adverse impact necessarily leads to disparate treatment

Second, I think the legislature will be swift in addressing the court’s concerns and this may lead to more significant repercussions in the way employers test applicants.

The Court sums up their decision this way:

Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

[ Thanks Ohio Employment Blog for this quote.]

If nothing else, this case reveals the tangled verbiage of the EEOC guidelines that have long troubled employers. (Take a look at the guidelines via the link provided above if you have any doubt as to WHY.)

The problem is, the court did little to untangle the mess.

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Want a little more information on EEOC guidelines?  Here is a good link: EEOC Guidelines

“Please list any and all, current personal or business web sites, web pages or memberships on any Internet-based chat rooms, social clubs or forums, to include, but not limited to: Facebook, Google, Yahoo, YouTube.com, MySpace, etc…”

Are you prepared to answer this question on a job application? If you are applying for work at the City of Bozeman, Montana, you will have to be, and some unhappy folks decided to take this practice public with the local news station. Here is a related article on ABCnews.com.

Since the airing of the story last week on WBZK TV, the city commissioners have been bombarded with angry calls and letters from people who find the practice invasive and believe it interferes with the right to privacy. City officials have defended the practice stating that working in public employment requires greater scrutiny and they only request, not require applicants to provide password information.

Question: If we create a public space which can be viewed by anyone, do we then have the right to say that it is an invasion of privacy for an employer to ask what public spaces we inhabit on the Web?

If we think back to Personnel 101 and interviewing do’s and don’ts, we will remember that questions about a person’s membership in clubs or associations may later be construed as a means to select out candidates deemed unsuitable, based on non-job related factors. Human resource professionals advocate selection criteria that focus on the requirements of the job.

However, the employer has a legitimate claim to personal information too. For example, does an applicant have a bad driving record (where the job involves use of a car), or convey openly hostile views toward a race or group of people? At what point does an employer become liable for NOT exercising due diligence when screening a job candidate?

So, yes, personal information is often very relevant. But here is the caveat and where the City of Bozeman is likely to run into trouble. It may be o.k. to investigate applicants, including the public spaces they create on the web, but the time to do it is after the an offer has been made, not before.

In addition, it appears that the City asked for passwords to enter sites that were not public, and this could be problematic, although careful construction of a policy and practice for certain professions, such as police officers, may make this legal (I am not an attorney and advise you to ask one if you want to do this.)

For an excellent legal perspective, head on over to the Delaware Employment Blog and learn more about how employers use social networking information in the candidate screening process.

Richard Anderson, CEO of Delta, was recently interviewed by the New York Times [here] and asked what he looks for in job candidates. He said a resume can outline education and experience, but it is the intangibles, such as the ability to communicate, lead and adapt to change, that are the most important. He refers to this as the human factor and suggests that gut instincts play a role in determining whether a candidate possesses these competencies.

He says he likes to ask candidates what four books they last read and what they enjoyed about the book. Also, he asks about their family, where they grew up, what their parents did, where they went for high school. He asks about their avocations, how many kids they had in their family, and other questions about their background and history. He says he is looking for a strong set of values and a good work ethic. In short, he is looking for emotional I.Q.

There is a saying: We hire based on qualifications, we fire based on competency. Unfortunately, too often training on interview skills is dominated by legal advice to steer clear of any question that might be construed as discriminatory. In fact, the best defense an organization has against such claims is to practice good human resource management. This means a commitment to professional standards, uniform implementation of policy and consistent treatment of candidates. Organizations that commit to such practices tend toward naturally diverse workforces.

Although intangible, Richard Anderson is clear about what he is looking for. He will rely on his gut instincts but his judgment is informed by many years of observing people. He does not worry about the prohibitions against asking personal questions because on the way to meeting with Richard Anderson, candidates were vetted in a thorough and professional manner. The take home lesson is the same for all employers: start with the nuts and bolts of the hiring process, but don’t stop there. Once the final candidates are selected, delve into what makes them tick, and go deep into the end zone of their personalities. Rely on what you know about people and the culture of your organization. Many organization leaders admit that hiring the right people is the hardest part of their job, and this is a sign they are on the right track.