You legal buffs out there know that under Title VII of the Civil Rights Act of 1964 (as amended in 1991) there exists a "burden shifting" framework that lays out how an employment discrimination case (hypothetically) proceeds:
1 - The plaintiff must show that the employer is using a particular employment practice (e.g., a selection test) that results in disparate (or adverse) impact against a legally protected group; if successful,
2 - The employer must show that the practice was/is job related for the position in question and consistent with business necessity; if successful,
3 - The plaintiff must show that there is an alternative employment practice (e.g., a different type of test) that would serve the employer's needs, be equally valid, and have less adverse impact and the employer refuses to adopt it. The classic case is plaintiffs suing over a written knowledge test and suggesting a personality or performance test should have been used.
You may also know that plaintiffs rarely win employment lawsuits (for many reasons, but one of which is employers are getting better at #2 above), and there seems to be a shift toward the third prong of the case--showing that there are alternative testing mechanisms out there that are equally as valid and with less adverse impact.
The October issue of the Industrial-Organizational Psychologist (TIP) contains two articles (both by individuals who have served as expert witnesses in discrimination cases) that touch on this subject and are worth a read:
Slippery slope of "alternatives" altering the topography of employment testing? by James Sharf
Less adverse alternatives: Making progress and avoiding red herrings by James Outtz
Also in this issue, a great analysis of the recent U.S. Supreme Court ruling in Parents v. Seattle School District by Art Gutman and Eric Dunleavy that reviews in detail the current status of affirmative action.