What does the New Haven case mean for private employers?

The short answer is not a whole lot.  This case does not provide a good guide for private employers because it involved the City of New Haven, a government entity.  Government entities at both the federal and state level must abide by stricter rules than private employers.

However there is an important lesson that any employer should take away from this case: you cannot throw out the results of an employment test because the results end up favoring a particular race.  Why? Because that very act means that the employer is making an employment decision based upon race.

This of course presents the damned-if-you-do, damned-if-you-don’t problem for an employer.  If the employer strikes the results, they risk a law suit.  Indeed I would expect to see a rise in these “reverse discrimination” type law suits after the New Haven case.  Alternatively, if the employer upholds the results of such a test then they face litigation over the results favoring one race or another.

So what does this mean for employers? The first choice is to avoid employment tests whenever possible.  If you do choose to give tests, make sure there is a legitimate need for a test specific to the position you are testing for.  Designing the test is critical.  You must make sure every question has a legitimate purpose in evaluating a candidate for the position.  Document the reason every question exists in the test and the purpose for which it is asked.

If you take these steps, then live with the results.  As the Supreme Court noted, just because you might be sued based upon the results it does not mean that the law suit will be successful.  Thus, the steps employers take in designing and documenting the process of creating the test are even more critical after this decision and that is the real lesson.

David B. Willis

David B. Willis

Bryan Willis is a Tyler lawyer providing legal services across Texas in the areas of business law, litigation, probate, and estate planning.
David B. Willis

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