Race, testing and hiring: It's complicated

Only a week after dodging a racially charged controversy in a Voting Rights Act challenge, the Supreme Court on Monday grabbed the high-voltage issue and declared that fear of a racial discrimination lawsuit is no reason to discriminate on account of race. The case involves New Haven, Conn., firefighters who studied for and passed a promotion exam, only to have the city throw out the professionally designed test because no African-Americans passed the test.

The court ruled, 5-4, in favor of the white firefighters, who claimed they had been discriminated against on account of their race. Given the facts of the case, it's hard to conclude otherwise. The city had a consultant design a promotion exam that would be racially/culturally neutral. Firefighters took the test. Upon discovering only white firefighters qualified for promotion and fearing a racial bias lawsuit by minority firefighters who scored lower on the test, the city of New Haven threw out the results and declared that the exam would not be used in the promotion process. No one denies that the city's decision was based on race.

The fundamental problem lies in civil rights law. Federal law prohibits not only "disparate intent," i.e., deliberate discrimination on account of race, but also "disparate impact" — anything that affects racial groups differently. Although New Haven had no intention of discriminating against minority firefighters, its promotion exam, professionally designed and carefully cleansed of any racial or cultural bias, did have a disparate impact. The city found itself in a "damned if you do, damned if you don't" situation.

The court's majority focused on the fact that, once the test results were in, the city's subsequent reactions were based on race. Justice Ruth Bader Ginsburg and three colleagues argued that disparate intent and disparate impact are complementary and, therefore, New Haven' actions were justifiable. It's hard to imagine how the city could create a new exam or promotion process without risking disparate impact.

Civil rights law has led to an exponential complication of the hiring process, especially in large corporations and governments. Each step of the process must be carefully vetted for any possibility of racial or cultural bias, and only tangible, documentable evidence can be used as a basis for hiring. New Haven's promotion test counted for 60 percent of the promotion consideration, for example. But, generally speaking, people are not hired to take tests; they are hired to perform tasks, manage others or delegate responsibilities. Tests might give an indication of occupational knowledge and familiarity with management processes, but it's hard to design a test that assesses one's work ethic, interpersonal skills, work demeanor and ability to get along with others. Those attributes often are the difference between success and failure in any job. I once told a somewhat under-qualified job applicant that if I hired her to be a reporter, I could teach her to write, but I couldn't teach her to work. To learn to write, she would have to be a hard worker, and that's an attribute neither I nor a college degree could grant her. She assured me she would be a hard worker; I hired her, and she did very well in the job as she worked hard at learning to write. Had I gone entirely by the applicant's experience and test scores, I probably could not have hired her.

A good hiring decision sometimes comes down to a gut feeling, the positive impression that someone makes in an interview, but it's impossible to defend a gut feeling against a claim of bias.