Thoughts on the Ricci Decision

It has been an interesting week as I have watched issues that I deal with on a daily basis become part of the mainstream news media. For those of you who are unaware, earlier this week the Supreme Court handed down a ruling in a case that deals with discrimination and employment testing. This case is highly relevant to what myself and other I/O psychologists do, and its complexities do not surprise me at all. I cut my teeth as a psychometrician for the City of New Orleans, helping to create and validate police and firefighter testing. I can say with confidence that, when it comes to test development and validation, public service testing carries with it by far the most potential for litigation. There are many reasons for this, all of which seem to hinge on the promotion (or lack thereof) of those in a protected class (e.g., minorities) over those in non-protected classes.

A complete discussion of the intricacies and technicalities of validation, discrimination, adverse impact, and differential prediction is beyond the scope of the words I am writing today. Suffice it to say that this case has placed competing priorities in the use of testing in the spotlight. These competing priorities are using fair testing while striving to eliminate discrimination in hiring. While title VII of the Civil Rights Act of 1964 has attempted to provide some guidance in relation to these competing goals, the Ricci case has laid bare some critical issues that in my opinion certainly call for the government to re-evaluate and modernize the standards it has set.

We are mandated to use valid tests. Valid tests can often lead to minorities being hired at lower rates than those of other races. This is seen as OK as long as the test has been validated, because in theory this means the test is job-related and job-relatedness is the standard by which the legality of testing is determined.

However, what are we to do when sticking to the use of validation — as we have been asked to do — creates a situation that actually inhibits the goal of ensuring diversity and fairness? This has been a thorny issue for those of us in my profession for a long time. There is no magic bullet. The dissenting opinion in this case led by Justice Ginsburg rallies around the idea that the spirit of diversity and fairness should be the highest standard to which we aspire in hiring. It is hard to argue with this point … except for the fact that there are technical issues which can stand in the way of our achievement of this goal.

So, what does all this mean for hiring in the corporate world? I offer my humble answer to this question as follows:

Don’t Panic –– Police and fire testing is the most highly scrutinized type of testing known to mankind. Don’t panic based on the results of this case. Do use this as a time to think about your use of testing and where it may leave you exposed.

Validate, validate, validate –– In this case the validity of the test was upheld. In my mind the validity of the test, while an issue, was not the main issue at hand. The only reason the city tried to throw out the test was because it ended up being counter to its goal of diversity. Despite this, I cannot stress enough the need to validate all testing that is used to make employment decisions. It is the cornerstone of best practices in testing and provides the documentation you will need should you find yourself in court. Without such documentation, you are toast! As an added bonus, validation is the process that provides awareness of issues such as adverse impact. You may not even know you have a problem unless you take the steps to validate. Remember, ignorance of the law is no excuse!

Look at the bigger picture –– I agree with Justice Ginsburg that the overall goal of eliminating discrimination is the highest standard to which we should be held. In the corporate world this becomes an issue of fairness in hiring practices across the board. One of the biggest ways to guard against problems while working to achieve diversity is to look at the demographics of your workforce vs. those of the available workforce in the area. If these do not look about the same, you have a problem. This problem can be rectified by actively recruiting for diversity. Diversity training programs are OK, and of course I support them, but the best thing to do is to put your money where your mouth is and be aware of your demographics and seek to hire diversity at all times.

Seek out testing that has been shown to reduce adverse impact –– The Uniform Guidelines on Employee Selection Procedures pretty much lay down the law when it comes to testing. A key part of this doctrine is that one should always seek out tests that are known to have less adverse impact. We know that cognitive tests have the most adverse impact while also providing the best predictive accuracy (i.e., validity). Resolving this conundrum remains the crux of the issue, with the Ricci case as firefighter tests are highly cognitively loaded. In the real world I feel this issue is best addressed via awareness of what is required for the job and by seeking out selection procedures that we know can test cognitive traits while displaying lower levels of adverse impact. If you guessed that I was going to recommend simulations as the best way to accomplish this goal, you are correct! The issues of this case are yet another piece of evidence that clearly demonstrates the value of simulations over more traditional types of testing.

I look forward to the discussion that my opinions generate and I am glad to see my corner of the hiring world getting its brief exposure in the national media spotlight. I certainly hope that the awareness generated should serve as a catalyst for change.