Date of Original Version
In this paper the history and development of disparate treatment as a result of standardized testing in both selection and promotion will be analyzed. Historical trends and litigation will be examined with particular emphasis on the validity and utility of utilizing standardized tests. In particular the recent Ricci and Lewis decisions will be scrutinized with an eye towards the influence those landmark cases may or may not have over future hiring and promotion practices.
In Ricci, the Supreme Court struck down a decision of a municipality to not use a promotional process that had a disparate impact upon minorities, while in Lewis, the Supreme Court struck down a decision of a municipality to utilize hiring practice with disparate impact upon minorities. There is an inherent question to be asked. Why was the testing practices of one organization upheld, the testing practices of a similar organization struck down, and why are so many of these tests so problematic to begin with?
In Ricci, the court utilized desperate treatment theory of Title VII, discrimination protection to “protect” a “non-suspect” class of individuals against racially motivated employment decisions following race based statistical testing bias in promotional testing. In Lewis, the Court utilized the disparate impact provisions of Title VII to find cause of action for a “protected class of individuals” following statistical race based testing bias in employment testing. These decisions seem diametrically opposed. How can any municipality move forward with any future testing policy, when they are open to liability regardless of their actions if there is any race based bias?