Thursday, May 27, 2010

Lewis case emphasizes need for valid tests

On Monday, May 24, the U.S. Supreme Court ruled in Lewis v. City of Chicago that plaintiffs filing an adverse impact discrimination claim under Title VII of the Civil Rights Act have 300 days to file from each time the test is used to fill a position--not just 300 days from when the test was administered.

For the most part, this mainly impacts employers that run an exam and use the results to fill positions for several years. In this case it was a firefighter entry-level exam, and my guess is it will mostly be public sector agencies and large employers that should pay particular attention to the ruling.

Why? Well for one it means more potential adverse impact lawsuits. If you were counting on being safe after 300 days from the exam, that is no longer the case. Second, it emphasizes the need to follow professional guidelines when developing an exam. Employers can successfully defend against an adverse impact case by showing that the selection practice is "job related for the position in question and consistent with business necessity..." (and that no alternatives with similar validity with less adverse impact were available). This means your exams need to be developed and interpreted by people who know what they're doing.

The City claimed that evidence related to an employer's business necessity defense might be unavailable by the time the lawsuit is brought--the court was not swayed. This means you'll want to hang on to your exam development records for at least a year beyond the last time you use the results to fill a position.

Another point worth noting: this case boils down to the validity of a cut score used by the City, which they themselves admitted wasn't supportable. Proper exam development and interpretation includes setting a job-related pass point based on subject matter input and/or statistical evidence that it is linked to job performance.

The Lewis ruling doesn't fundamentally change what we should be doing. It just emphasizes that we need to do it right.

Click here for a quick overview of the facts of the case.

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