In the recent SHRM webinar “Understanding the Changes to Federal Agency Enforcement of Disparate Impact Enforcement,” Alex Alonso, Ph.D., SHRM-SCP, chief data and analytics officer at SHRM, hosted a discussion on executive orders (EOs) on disparate-impact enforcement and diversity, equity, and inclusion programs — and what employers should do to stay compliant. Joining him were David Fortney, an attorney with Fortney and Scott LLC in Washington, D.C., and David Cohen, president of DCI Consulting in Washington, D.C.
Disparate impact occurs “when a seemingly neutral selection procedure disproportionately screens out members of a protected class and that selection procedure is not job-related and consistent with a business necessity,” Alonso said. The critical factor is whether the hiring test measures a candidate’s fit for a particular job and is therefore validated. If a selection procedure is valid and there are no other reasonable alternatives, it is legal even if there is an adverse impact.
“There is no such thing as a valid test” in itself, Alonso cautioned. “A test can only be validated for a job, and context always matters.” For example, if a selection procedure, such as a physical strength test, disproportionately screened out women, it would raise a red flag. But if the job in question had a physical component, the test may likely be job-related and necessary for the business. However, the same test would likely not be validated for a sedentary office job.
Campbell’s, a renowned canned soup brand, recently terminated a high-ranking executive following the emergence of a recording in which he made racially insensitive statements and alleged that the ...