The recent decision by the Supreme Court in Ricci vs. DeStepano is the correct one. When an organization fails to promote individuals because of the fear of litigation on the part of those who were not promoted, this is discrimination. See the decision here - http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf.

In this case, a test was given to a number of employees of the New Haven, Connecticut fire department for promotion to Lieutenant and Captain. After the test was given, it was determined that 17 white employees, 2 hispanic employees would be eligible for immediate promotion. There were no members of other minority groups eligible.

Under disparate impact rules, the promotions would have caused a prima facie case of discrimination and opened the city to a risk of a lawsuit by black firefighters. After much discussion and debate, the city decided to ignore the results of the test and promote no one. The white fire fighters sued and the Supreme Court decided in favor of the white fire fighters by stating they were discriminated against due to their race.

This decision must make all organizations take a hard look at their recruitment and promotional practices. The City of New Have relied solely on the test to make promotional decisions and then negated the results after they saw there could have been a disparate impact based on race. Disparate impact is not proof of discrimination, but it puts the organization in a defensive position to prove the test is based on business necessity.

If the City of New Haven took past attendance and performance into account, or held some sort of in-basket exercises or an assessment center as part of their promotional process, the outcome would probably have been much different.

Too many organizations rely too heavily on assessments and tests to make hiring and promotional decisions. If an employee does not pass the test, then there is no job.

A couple of years ago, I was working with a company looking for a marketing director. The candidates were required to pass a Wonderlic test. They had 35 people take the test - some with over 20 years of successful experience in the industry. Yet no one was able to pass the test. Applicants were interviewed by telephone, brought in for a face-to-face interview and then given the test. If not passing the test was a disqualifier, the company should not have wasted time interviewing candidates and simply had all applicants take the test before moving to the next step. To me, it was a simple case of Wonderlic making the test impossible to pass so they could sell more tests to the client. Wonderlic is an intelligence test and this test was developed with the assumption that a marketing executive should have a certain level of high intelligence to do the job. We all know this is not true as we all know many very stupid people who are successful in the marketing field. Past performance and past accomplishments were totally discounted simply because the applicants could not pass the test.

I met with a guy about a year ago who sold personality assessments. I asked him what percentage of certainty the assessments attained. When he said 100%, I knew he was full of baloney. Under current guidelines in the USA, if a personality assessment is more than 39% accurate, it passes the validity test.

Too many employers make employees take a Myers-Briggs, DISC, Personality Index, or Occupational Personality Questionnaires or any one of the thousands of assessments available on the market. There is no such thing as an assessment test that is more than 50% accurate. By relying on personality assessments, we may be dismissing half of the qualified candidates.

If an experience interviewer cannot be more that 50% accurate in his or her assessment of a candidate, then the interviewer ought to find another line of work.