March 11, 2011
The following post appears courtesy of Thomas E. Perez, Assistant Attorney General for the Civil Rights Division at the U.S. Department of Justice Forty years ago this week, in its landmark ruling in Griggs v. Duke Power Co. in favor of 13 African American workers, the Supreme Court held that employers may not use tests or criteria that disproportionately screen out particular groups if the tests don’t actually measure a person’s skills for the job. The ruling laid the framework for the “disparate impact” theory of employment discrimination, recognizing that even if an employer does not intend to discriminate, its practices can be illegal if they have a discriminatory effect. In the decades since, there has been no dearth of situations in which tests have, intentionally or not, screened out people of a particular race, national origin or sex who are in fact qualified. Employers sell themselves short when they exclude potential employees based on arbitrary criteria that do not accurately measure the skills necessary to succeed in the job. After all, we wouldn’t choose members of a baseball team by testing their knowledge of baseball history and statistics. Particularly when it comes to staffing our nation’s police and fire departments, we all want the most qualified people patrolling our streets and protecting our communities. Although using written tests to screen applicants for these important positions may present the appearance of objective, merit-based selection, written tests often do not actually identify applicants who will be successful at performing these jobs. If appropriate analysis finds the test to be a poor assessment of an applicant’s ability to do the job, it is in everyone’s interest to find a better measure. That is what the Court recognized in the Justice Department’s lawsuit filed in 2007 against a City. That lawsuit challenged the written tests used by the City to screen and select entry-level firefighters. The Court found no evidence that the questions on the tests successfully measured the skills required for the firefighter job. According to the Court,the City’s tests did not distinguish between qualified or unqualified candidates, or even between those candidates who were more -- or less -- qualified. For example, it was undisputed that the City’s written tests were designed to measure only a fraction of the abilities that evidence showed were critical for the firefighter job, omitting important personality and interpersonal skills. The Court found that these skills, together with the physical abilities necessary to perform the demanding job of firefighter, were actually more important to successful job performance than the skills the City tried to measure with its written tests. Moreover, the Court found that the City’s tests did not even effectively measure the small fraction of skills they were intended to assess. The Court concluded that applicants were excluded from consideration without having the opportunity to demonstrate their qualifications for the job, and hundreds of minority applicants were denied the opportunity to serve as firefighters for no justifiable reason. Congress passed the Civil Rights Act in 1964, when African Americans were subject to overt discrimination in all aspects of life. In the employment context, the law’s intent was to ensure individuals would be judged only by their qualifications for the job. As Chief Justice Burger noted in his opinion in Griggs, “Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins. Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant.” We have made great progress in breaking down barriers to equal opportunity. But discrimination undeniably persists, in overt and subtle forms. The Justice Department will continue to combat such discrimination so that our nation can fulfill its greatest promise of equal opportunity and equal justice for all.
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Updated April 7, 2017