TAKE AWAY: Employers operating in New York, Connecticut, and Vermont who utilize employment tests should be prepared to prove through legally competent evidence that: (1) the test makers first conducted a suitable job analysis, (2) they used reasonable competencein constructing the test, (3) the content of the test is related to the content of the job, (4) the contenet of the test is also representative of the job, and (5) the employer used a scoring system that usefully selects from among the applicants those who can better perform the job.
Last week, the Second Circuit reconsidered its precedents governing proof of adverse impact in age discrimination cases, as discussed elsewhere on this site . Now, the Second Circuit (albeit a different panel) has reexamined its precedents regarding an employer's burden of proof to successfully defend the legal validity of an employment test. Judge Wesley's opinion for a unanimous panel in Gulino v. Board of Education ultimately focuses upon what evidence an employer must produce in order to demonstrate that a particular employment test (or other employment practice alleged to have an adverse impact) "is job related for the position in question and consistent with business necessity," and thereby rebut a plaintiff's prima facie case.
The Gulino opinion notes that the terms "job related" and "business necessity," now enshrined in Title VII , have been "used interchangeably by the courts," although they appear to have semantic differences. The court finesses this problem by using alternate language from the Albemarle decision as the operative standard: "discriminatory tests are impermissible unless shown, by professionallt acceptable methods, to be predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated."
The Gulino plaintiffs challenge the use of two tests by the New York City Board of Education to determine whether candidates for teaching positions are qualified. (interestingly, the court penned a lengthy opinion, including 27 footnotes, without so much as a nod to the "well qualified" terminology introduced by the No Child Left Behind Act.) Both tests passed muster with the District Court; the decision was not appealed as to one of the tests. The Court of Appeals finds that the validity of the other test must be measured by a more rigorous test than the one used by the District Court, and so remands.
Besides harmonizing and distinguishing a large body of Second Circuit precedent with its decision in Gulino, the court's opinion also contains a useful discussion of the difference between tests that seek to measure mastery of job content and tests that seek to measure whether an individual possesses certain job constructs (mental processes or traits). Validation of tests measuring constructs is much more difficult than validation of tests measuring knowledge or mechanical ability. The test being scrutinized here was one measuring constructs, and the court found that the formula laid out in Guardians Ass'n v. Civil Service Commission, 630 F.2d 79 (2d Cir. 1980) - and spelled out above - was still appropriate for determining the validity of such tests.
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Posted by: New York Universities | February 11, 2009 at 04:33 PM