Employment Testing Can Backfire

Conservative columnist George Will this week (Monday) wrote a column in which he traced the widespread requirement for college degrees for jobs just about anyone could do to the Civil Rights Act of 1964 and subsequent interpretations and enabling legislation.

Under Will's telescope, the problem was that courts and juries began finding that employment tests, whether intentionally or not, often resulted in skewed results whereby certain classes of people would do better than others. Thus the tests discriminated, willy-nilly or no.

The solution for employers, according to Will, was simply to require that employees have college degrees for jobs beyond the routine and mundane. Certainly, the jump in those attending college in recent years might be an indicator of this, although technologically advanced work sites and workloads could be another factor.

At any rate, this brings up the interesting story of firefighters in Akron, Ohio, who had to take a test for advancement. Somehow, the results skewed against those firefighters who were either white or over 40. The 23 affected firefighters sued, and the jury agreed, awarding them a $2-million judgment.

If there's a lesson here, it's "don't give tests," though that seems like a ridiculous approach to screening employees for skill sets. Problem is, courts and juries base judgments on results, not on intent of the tests, and even if the results are random, they can still lead to findings of discrimination.

If you're an employer, you may want to delve into both the Employee Communication and Compliance Handbook and the Employee Handbook and Personnel Policies Manual from Personnel Concepts.

Lilly Ledbetter Rides Into Congress

Well, not literally, but the woman whose name is attached to a famous Supreme Court decision did speak at last summer's Democratic National Convention.

Her name is also attached to a bill that, according to the New York Times, is on a Democratic fast track for approval and, no doubt, a signature by Barack Obama once he's in the White House.

The Lilly Ledbetter Fair Pay Act greatly modifies the Ledbetter v. Goodyear Tire & Rubber Co. decision, which held that the statute of limitations on pay discrimination cases runs from the moment the decision is made on the discriminatory pay.

Poor Lilly filed her claim after the statute had run its course, and her lawyers were unsuccessful in arguing that the original decision lives on in each paycheck.

You guessed it. Congress is now legislating that the statute does just that--begins anew each time the discriminated employee receives a paycheck or is affected by the original decision.

Republicans filibustered Lilly out of the Senate last year, but with the Democrats only one vote from foolproof cloture-closing power, she (the law) stands a good chance this year.

Indeed, ending filibusters by the GOP over its cadre of labor-friendly bills, including the Employee Free Choice Act (EFCA), may be one reason the Dems are now warmly embracing Illinois Senate appointee Roland Burris after denying him a seat yesterday, though they'd certainly never own up to it.

Anyway, employers won't have many options now if they discriminate in pay (i.e., pay different people different wages for performing the exact same work, provided they have the same qualifications and seniority (I assume on these last two provisions, though I'm certainly not a legal expert by any means).

So, Lilly Ledbetter may never have gotten the pay she deserved from Goodyear, but she'll now be the bane of every employer in America, at least those who disciminate in pay.