In a September Workforce Management article, James A. Burns Jr. examines the Supreme Court's decision in Ricci v. DeStafano. This is the case that gained so much notoriety because recently-confirmed Supreme Court Justice Sonia Sotomayor sat on the appeals court that heard the case. Politics aside, the Supreme Court's decision may impact many employer's hiring criteria.

You may recall that the City of New Haven, Connecticut determined that a test given to firefighters who were candidates for promotion posed a risk of discrimination against African American firefighters after they noted that that class of candidate scored lower on the test. They scrapped the test and some white firefighters sued. In the precedent-changing Ricci case, the Supreme Court decided that fear of litigation was not justification for throwing out an already administered test.

According to the Workforce article:

Employers who learn that a test or other selection device has a discriminatory impact on some employees now find themselves between a rock and a hard place. Using the test may lead to one kind of discrimination claim, while discarding the test may lead to another. That makes it more important than ever that employers think through the possible issues before using any test or selection device in making employment decisions.

Read the full article for a great explanation of the court's decision and the possible ramifications for employers. The main takeaway is that all selection tools and criteria need to be validated as relevant to the job before being put in place.

For employers using background investigations, this means that they should work with their legal counsel and background screening partner to ensure that they have clear, job-related criteria about how information in the background check will impact a job candidate, particularly criminal information. "No felonies", "clear criminal record", and other overly-general policies have long been recognized as adversely impacting protected populations and should be avoided.

However, job-related guidelines need to be in place in advance to ensure that consideration of applicants' criminal histories takes place in a fair and consistent manner. Ricci underscores that deciding job-relatedness after receiving the background check is too late in the process.