Part 2 of 2
Last time I discussed five important lessons we can take away from recent rulings in the Vulcan v. City of New York case. In this post I'll review the remaining lessons and also discuss the relief order.
6) The city failed to provide sufficient evidence that the exam(s) tested for a sufficient number of the critical KSAs. They also failed to explain why they chose not to measure several KSAs identified as critical.
Lesson: the courts do not require employers to measure every single critical KSA. But there is an expectation that employers attempt to measure a sufficient number that represent a significant portion of the job requirements. In this case, that included non-cognitive abilities such as resistance to stress, teamwork, and conscientiousness, that were not measured.
7) The city failed to adequately consider how to measure a significant number of essential KSAs. While some of their concerns were valid (e.g., structured interviews for all applicants would be an operational nightmare), there are many different forms of testing that should have been considered, including situational judgment tests (SJTs) and biodata, which can be used to measure non-cognitive components.
Lesson: triers of fact expect employers to be up on the various assessment methods available and be able to explain why they chose not to use certain ones. This includes tests that are relatively easy to develop (e.g., SJTs) as well as ones that require substantial resources and statistical expertise (e.g., biodata).
8) The city failed to conduct a reading level analysis on the exams to ensure that it was not "pointlessly high." The plaintiff introduced evidence suggesting the reading level was above 12th grade; in addition, it appeared to exceed the reading level of materials at the academy.
Lesson: never forget that every assessment method is in some sense measuring additional KSAs beyond those you intend. For written exams, reading comprehension is always a requirement (barring accommodation). It's quite easy to conduct a reading level analysis (MS Word has it built in) to ensure that the level is reasonable and matches other job-related material.
9) The city failed to show that the cutoff scores (pass points) established for the exams were based on adequate rationale, namely "the necessary qualifications for the job of entry-level firefighter." Instead, the cutoff scores were based on operational need (the number of job openings expected). This is particularly important in multiple-hurdle selection processes such as in this case, where a failure on one exam component precludes an applicant from participating in the rest of the (potentially compensatory) assessment process.
Lesson: ultimately applicants have to pass the test(s) to be considered for employment. Cutoff scores should be established using the expertise of both SMEs and test developers and should be based on the minimum competency levels required upon entry to the job. At a minimum (and I would not rely solely upon this), the scores should be analyzed to identify any logical "break-points."
After ruling for the plaintiffs on both the adverse impact and disparate treatment claims, the judge issued a relief order on 1/10/10. In it, he imposes several things, including the following:
1) The city must develop a new testing procedure for entry-level firefighter in conjunction with the relevant parties. Following the development of the test, there will be a hearing to determine if this test should be used rather than the current test (developed in 2007 and not at issue in this litigation).
2) The court shall develop a process by which the approximately 7,400 applicants covered by this case can file a claim for monetary relief.
3) The city will identify 293 black candidates on the eligibility list and offer them priority hiring. (No quotas are being imposed, although the judge leaves this possibility open)
4) Retroactive seniority for those hired.
In addition, several other issues are up for debate, including the appointment of a special master or monitor, standards that will be relied upon in constructing the new exam, and the need for additional relief.
So what did we learn from all this? If you follow--fairly closely--best practices when developing and administering exams, you will be on solid ground defending them. If you don't, and your exam has a discriminatory effect, you may be called on it--and it's not a pleasant process. I'll leave you with this quote from the January ruling on disparate treatment:
"The history of the City's efforts to remedy its discriminatory firefighter hiring policies can be summarized as follows: 34 years of intransigence and deliberate indifference, bookeneded by identical judicial declarations that the City's hiring policies are illegal."