Wednesday, July 01, 2009
Ricci case: Full of sound and fury...
There's been a lot of hoopla over the last several days over the U.S. Supreme Court's decision in Ricci v. DeStefano. It's been described as a win for "reverse discrimination" cases, a rebuke of written tests, and judicial activism. The way I read it, the decision is completely unsurprising and will likely change absolutely nothing about employment testing.
For anyone who isn't familiar with the case, here's a very brief rundown: the City of New Haven, CT gave promotional tests for Lieutenant and Captain firefighter positions using written multiple choice tests and interviews. When they crunched the results it turned out--not surprisingly--that there was statistical evidence of adverse impact against the Black candidates. The City decided not to use the list, and the White and Hispanic candidates sued, claiming disparate treatment. The Supreme Court ruled in their favor.
A little unusual of a case in terms of who's on what side, and there's a lot of good reading in the decision for anyone wanting to know more about test validation. But the decision itself is totally consistent with three main themes from previous decisions:
(1) There really isn't "reverse discrimination"--there's just discrimination based on a protected classification, such as race, color, or sex. Majority groups are protected just like minority groups.
(2) Employers do not have to go to irrational lengths to validate their selection methods. Although the tests had flaws, the court continued to demonstrate that employers simply need to follow a logical process for developing the exam to show job relatedness; the exams don't have to win any awards.
(3) Disparate treatment by a government entity in order to avoid liability for adverse impact is legal only in certain very specific instances (when there is a "strong basis in evidence"). The court has been trending for years toward "color-blind" selection decisions.
About the only thing this case really points out is employers need to be ready to use the results from whatever test they administer, barring some enormous irregularities. That, and part of a defense against an adverse impact case might be that choosing not to use the exam would have been evidence of disparate treatment (I'll grant you that one's a little confusing).
All in all--and I'm certainly not the only one who feels this way--it doesn't appear to be anything to get excited about.
Want to know more? Check out the scotuswiki page.