DISPARATE IMPACT IN PROMOTIONAL TESTING
Nearly all written promotional examinations have a disparate impact or adverse impact. The question is, is such an impact based on impermissible qualities, such as race, age, gender? What is the particular department situation and testing method – is it a written “job knowledge” test combined with oral and an “assessment center”? This tends to be most typical. But test results will vary widely based on a host of inter-connected criteria
For example, one must consider:
- The weight assigned to each portion of the examination;
- The degree of subjectivity involved in establishing and grading the examination;
- The skill in which the examination was constructed and applied to your particular department’s inner workings;
- The suitability of the underlying job analysis done by the tester;
- The care used in administering, grading, and computing the examination results;
- The department’s own directives to the tester and the tester’s own internal goals (e.g., profit; time-saving measures leading to sloppiness; etc.);
- The method of choosing from among eligible candidates.
These are but a few factors that will affect the outcome and score of any promotional examination. Of course, there are many more in general and also many more unique to a departmental profile.
Although statistics are an integral part of proving the disparate impact case, the heart of it is the underlying methodology employed by the particular tester. This forms the bedrock (or mud, depending on the tester) of the required results of reliability (repeatability) and validity (integrity). It’s also important to realize that you don’t have to prove intent with this type of litigation. Even facially neutral criteria can work together in such a way as to result in impermissible disparate impact discrimination – not just based on race, but also gender and, increasingly, age.
The Assessment Center: Is it Adequate?
Nearly all examinations for safety forces involve an assessment portion of the examination. Because such examinations are so widely varied, this portion of the examination poses particular dangers for adequate and neutral testing and criteria. You need to assess the factors in the examinations, such as whether they’re written, oral, or an actual simulation of a fire scene, etc. Potential bias can creep in via subjective grading, whether there are checks and balances, whether experienced personnel are doing the assessing, whether the exam properly gauges officer qualities, etc.
Many cities, including our experience with Cleveland, are so intent on cutting costs that they permit shoddy examination methods in this area and conduct what may not be “true” assessment centers (e.g., a paper and pencil “in-basket” computer-graded test) and will virtually always result in promotion of lesser-qualified individuals. Such assessment center examinations must therefore be very closely examined. See “Guidelines for Ethical Considerations for Assessment Center Operations,” International Task Force on Assessment Center Guidelines, 2000.
Getting Involved
Disparate impact litigation is complicated and not for the faint-hearted. But it’s a vital part of ensuring the most qualified individuals are not carved out from the rest of the group because of impermissible factors. We’re continually amazed at the prevalence of disparate impact in promotional testing; indeed many cities have ignored their own prior consent decrees with seeming impunity.
It takes courage to get involved – a willingness to be possibly shunned or harassed by others not in the protected group, for example. And it takes fortitude: you’ll likely be living with this litigation for some years to come. On the other hand, it’s better to take action, rather than continue to see the whittling down of your rights, loss of seniority, and lack of access to better opportunities in the department. It’s just as important for the future, and for those to come after you, as it is to rectify past wrongdoings. See What Others Have Said and Done: Go to “Fireside Chat” - or “Fuzz Buzz”
To get involved, talk to others in your situation. Gather all manuals, policies, general orders, ordinances, etc. Assuming you’re a public employee, conduct a public records request under your state’s “sunshine” laws. Drafting the Public Records Request Compile as much information as you can. Virtually all states have sunshine or FOIA laws, and your public employer must obey the laws or be subject to a writ filed in court with attendant damages and attorney fees.
In short, don’t let the specter of disparate impact litigation intimidate you. With proper application and analysis by experienced lawyers and statistical experts, you can go a long way toward righting decades of wrongs in the workplace and helping to ensure a secure future for yourself and others.
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