By David A. Drachsler, Vice Chairman of the Virginia Council on Human Rights & a retired U.S. Department of Labor attorney
The Supreme Court's decision in Ricci v. DeStefano may have effectively invalidated the federal Testing Guidelines. The Testing Guidelines, developed almost 40 years ago, require that employers who use any selection procedure for employment or promotion, including written tests, that screens out significantly more members of one group than another, must "validate" those procedures. They must show by scientifically accepted statistical methods that the tests actually measure a person's ability to perform the job successfully, that is, that the test is "job related."
Most of the focus on the June 29 decision in Ricci was on the Court's new standard for determining whether an employer can throw out the results of a test -- it can do so only when it has a "strong basis in evidence" that the test is not job related and justified by business necessity. But at the end of the decision, the Court directed the lower courts about how this case, and presumably similar ones, should be handled in the future: