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.
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3 comments:
Bryan—I think we’re on the same wavelength. A big fuss was made about this case but when the decision came down it repeated what we’ve been hearing for some time: disparate treatment (intentional discrimination) is bad, disparate impact (unintentional discrimination or adverse impact) is bad, and oh by the way, committing one type of discrimination to avoid the effects of another is also bad. Like we didn’t know that already!
Although I agree with some of your points, I believe you minimize the potential impact of this case. The Court’s analysis was of the "premise that the City’s actions would violate Title VII’s disparate-treatment prohibition absent some valid defense." However, they evaluated this disparate treatment by looking at issues of disparate impact. So, they essentially considered the merits of a non-existent case without the input of individuals or experts who would have had a “say,” if that case would have existed. Issues such as the job-relatedness of test weights and consideration of alternatives were dismissed as legitimate issues and presented as if the city had somehow met the requirements of the UGESP in both of those areas. If this case would have actually occurred as a disparate impact case with Black firefighters as plaintiffs, those issues would have been presented with significant focus and extensive expert testimony. However, the Court overreached on their conclusions of these issues, which unfortunately has the potential to set precedent regarding these types of considerations in future disparate impact cases. The Court could have (and probably should have) ruled that the City's arguments (i.e., those validity issues) were pretext to their decision to scrap the test and subsequently a disparate treatment violation. However, they went beyond and stated that those issues are not only pretext, but also not legitimate. For example, here is a quote from p. 30 of the Opinion:
But respondents [i.e., the City] have produced no evidence to show that the 60/40 weighting was indeed arbitrary. In fact, because that formula was the result of a union-negotiated collective-bargaining agreement, we presume the parties negotiated that weighting for a rational reason. Nor does the record contain any evidence that the 30/70 weighting would be an equally valid way to determine whether candidates possess the proper mix of job knowledge and situational skills to earn promotions.
All of these statements regarding production of evidence are completely contrary to the burden of proof that would have been in place for a disparate impact case. The plaintiff would not have to prove that the weights were "indeed arbitrary", but rather that they were not job related and that other equally or more valid weights were available and would have been expected to minimize AI. On the otherhand, the City would have to provide evidence that the weighting was job related, instead of "rational"...not to mention the issue of "equally valid."
On the whole this decision seems to muddy the water with regard to disparate impact litigation by considering evidence in a manner that is inconsistent with the UGESP.
CTRL+X: you raise some great issues, very well said. I think reasonable people are going to disagree on the impact of this case and we really won't know what the impact will be until we start seeing more cases. An example is the New York City firefighters case, where the judge mentions Ricci but distinguishes it just the way I would predict by pointing out that Ricci is (as you mention) a disparate treatment case, not an adverse impact case.
If in future adverse impact cases an employer attempts to cite Ricci as setting a lower bar for meeting the "job related and consistent with business necessity" burden, as a plaintiff I would point out that Ricci dealt only with the case of defending one type of discrimination by avoiding another. Yes, the court made some (frankly, kind of odd) comments about adverse impact liability, but it does not change the burden shifting under Title VII. Failing to produce evidence to overcome a "strong basis in evidence" standard is not the same as meeting your burden under a typical adverse impact case.
I think we need to remember how unusual of a case this was. It's very rare--and I would assume will continue to be--for an employer to argue against its own test.
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