My eyelids droop when I hear lawyers or Phds explaining anything. And when they explain something legal, my head hurts. And when they explain the legality of testing, my head droops, hits the desk and I hurt even more.

(There are exceptions and among them I happen to love Charles Handler who recently wrote an ERE article on this subject)

However, while I think staffing leaders want to understand what is going on in all relevant corners of their world the recent Supreme Court decision on the Ricci case (which may eventually have some bearing on testing) is confusing.

The problem is that it is a complex finding and, while it will certainly be dissected for the next few months offering lawyers, EEO experts and psychologists extra exposure on webinars, my simplified [and arguable biased] take in a few somewhat declarative sentences follows:

- The City of New Haven uses a written test to determine whether to promote firefighters to a "command" position.

- The test adversely affects minorities i.e. they do significantly poorer.

- The City refused to accept the results of their own test because the results were "discriminatory". (The guys and gals who took the test and came out on top were upset and cried foul.

- The Supreme Court refused to accept the city's argument. The results stand.

- In sustaining the original results, the Supreme Court said that the City gave the test and now they need to live with the results.

-The Supreme Court also said that the City poorly argued that the test wasn't valid in the first place and so they had to assume it was valid until it was proven that it wasn't. (Lots of experts support the notion that the written test in question aka the "book learning" approach lacks any connection to the reality of what it takes to lead firefighters. Unfortunately, the [so called] experts argue among themselves about the best way to measure validity and ended up confusing the court.)

- Bottom line, the Supreme Court supports scientific selection which on its face cannot be ignored simply because a specifc group does poorly. The Supreme Court however is not saying that you can get away with a test that discriminates if it is NOT truly valid.

- However, the ruling was close and a minority [no pun intended] decision by Ginsburg championed a new notion- that "diversity" is a "primary objective in staffing". This has a lot of folks up in arms who think (as most of us do) that hiring candidates who will perform well is the primary objective..and that doing it fairly to ensure the successful candidates are, in fact, diverse is what we are talking about.

In the short run, if you validate against performance, you will have fewer problems. If you recruit against criteria you've validated, simply make sure your diverse candidates all meet the same bar. Tom Janz sent me this link to SIOP content and a few notes which prompted my blog. Thanks Tom (another PhD I can understand)