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Ricci v. DeStefano: A New Approach to Disparate-Impact Discrimination in Promotional Testing

Editor's Note: The IAFC has begun a dialog regarding the recent U.S. Supreme Court decision of Ricci v. DeStefano.

This article, "Ricci v. DeStefan - A New Approach to Disparate-Impact Discrimination in Promotional Testing," by John Rukavina, a retired fire chief and attorney, offers a legal analysis of the case, its progression to the Supreme Court and the impact it may have in local fire departments.

No Easy Answers: The Nature of Diversity and Leadership, by Chief Rhoda Mae Kerr, chair of the IAFC Human Relations Committee, offers perspective on the nature of diversity and inclusiveness efforts and how the fire and emergency service can lead the way forward.

This topic will be featured at two Fire-Rescue International sessions, including a new Sunrise Session on Thursday, August 27. It will also be featured in the Human Resources Seminar held on Wednesday, August 26.

If fire service managers were expecting the U.S. Supreme Court's Ricci v. DeStefano decision last month to make the law governing entrance and promotional testing policies simpler, they're probably going to be disappointed.

The Court's 5-4 decision, handed down on June 29, made no broad changes in employment-discrimination law. In simple terms, the Ricci majority held that if an employer gives a promotional test and then concludes on the basis of who didn't pass the test that the test was discriminatory, that employer can't throw the test results out unless there are additional facts, a "strong basis in evidence" that the test was in fact discriminatory.

The Ricci case actually began in 1971 with Griggs v. Duke Power, where the Supreme Court held that a promotional test that was "fair in form, but discriminatory in operation" was a violation of Title VII of the Civil Rights Act of 1964, even if the discrimination wasn't intentional (Griggs called this unintentional discrimination "disparate impact"). If, according to Griggs, a promotional process produced a disparate impact, the employer had the burden of demonstrating that the test was job-related.

The EEOC subsequently established the "four-fifths test" rule to help employers identify disparate impact—a test that one race passed at less than 80% the rate of another group would be presumptive evidence of a disparate-impact violation of Title VII.

Now, fast-forward to 2003, when 118 New Haven, Conn., firefighters took the lieutenant's and captain's promotion exams. By the terms of the city/firefighter local collective-bargaining agreement, the eligible list would be based 60% on a multiple-choice test score and 40% on an oral-exam score, and promotions awarded on a rule-of-three basis—a not-uncommon civil-service approach to public-safety promotional testing.

New Haven contracted with Industrial/Organizational Solutions (IOS) to develop the written test. According to the U.S. District Court record, IOS representatives undertook a lengthy test-design process that included interviews, ride-alongs to observe lieutenants and captains at work, sample tests and other elements designed to limit discriminatory impact.

Forty-three white firefighters took the lieutenant's test; 25 passed, a passing rate of 58%. 19 black firefighters had taken the test, but the pass rate for blacks was 32%, significantly below 80% white applicants (EEOC’s four-fifths test). The result was similar for Hispanic firefighters—15 had taken the test and three had passed, a pass rate of 20%, again well short of EEOC's four-fifths test.

The results were similar for the captain's exam—25 white firefighters took the test and 15 passed, a 60% pass rate. Eight black firefighters tested and three passed, and eight Hispanic firefighters tested and three passed, both for a 37.5% pass rate. The African- and Hispanic-American pass rates were some 10 % below the four-fifths test 80% limit.

[There were eight lieutenant vacancies and nine captain vacancies at the time of the test. Application of the rule of three meant that those vacancies would have been filled immediately by 17 whites and two Hispanics.]

The results generated a major local debate. Mayor John DeStefano and other New Haven representatives argued that the test should be thrown out. In a series of several hearings, the Civil Service Board heard from IOS representatives who reviewed the test-development process, the only two non-IOS persons who'd seen the test (who said that "the questions were relevant" and "appear[ed] to be reasonably good").

New Haven representatives argued that, when measured against the EEOC's four-fifths standard, a presumption that the test resulted in disparate-impact discrimination was inevitable (although those representatives could point to no evidence of discrimination in either the test–development or test-administration processes) and unsuccessful candidates would thus sue New Haven if the test results were certified.

After several hearings, the Civil Service Board ultimately split 2-2 on certification of the test results; the tie vote meant that the test results were not certified.

The 17 white firefighters and one of the two Hispanic firefighters who would have been eligible for immediate promotion sued, alleging they were victims of reverse discrimination, a violation of the same Title VII on which New Haven was relying—throwing out the test results was an act of discrimination against the firefighters eligible for promotion on the basis of their race.

The firefighters lost in U.S. District Court. District Court Judge Janet Bond Atherton relied on the EEOC guidelines, noting that the four-fifths rule

"…will generally be regarded by the Federal enforcement agencies as evidence of adverse impact."

Judge Atherton also found that New Haven had no obligation to have the test validated after the fact, noting that EEOC guidelines

"…do not require or mandate a validity study where an employer decided against using a certain selection procedure that manifests this [disparate] impact, and [Ricci’s] argument that [DeStefano] violated Title VII by refusing to conduct a validity study before rejecting testing results is unpersuasive."

Judge Atherton was equally unimpressed with Ricci’s argument that, unless DeStefano could show where the test was discriminatory, the test should stand, regardless of the EEOC four-fifths rule.

Finally, Judge Atherton had no dispute with DeStefano’s argument that the reason for throwing out the test and starting over was the apparent adverse impact of the test:

"[DeStefano’s] motivation to avoid making promotions based on a test with a racially disparate impact, even in a political context, does not, as a matter of law, constitute discriminatory intent, and therefore such evidence is insufficient for [Ricci and the other firefighters] to prevail on their Title VII claim."

In other words, the Civil Service Board acted because of the apparent discrimination against black promotional applicants, not to intentionally discriminate against white promotional applicants.

Atherton's decision was upheld by a three-judge panel of the 2nd Circuit Court of Appeals. Ricci appealed for a hearing before all the judges of the Second Circuit (an "en banc" hearing), but that request was denied. Ricci and his fellow plaintiffs took their case to the U.S. Supreme Court, which agreed to hear it. The case was argued earlier this year.

In what has become a recurring 5-4 majority, the U.S. Supreme Court disagreed with Judge Atherton's reasoning. Writing for the Court's majority, Justice Anthony Kennedy reached the following conclusions:

Disparate impact alone is not always enough.
Citing a nonmajority opinion in an earlier 14th Amendment case, Kennedy noted that reconciling the interests of those who did not pass the test with the interests of those who did should "require … employers to act with extraordinary care" and that it should take a strong basis in evidence to support race-based remedial actions because "evidentiary support for the conclusion that remedial action is warranted becomes crucial when the remedial action is challenged in court by nonminority employees." Kennedy concluded that the same test out to apply to Title VII cases like Ricci.

We have a new test—"strong-basis-in-evidence."
"The [strong-basis-in-evidence] standard leaves ample room for employers' voluntary compliance efforts, which are essential to the statutory [Title VII] scheme and to Congress's efforts to eradicate workplace discrimination. And the standard appropriately constrains employers' discretion in making race-based decisions: it limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation."

Translation: In a situation like that of New Haven, an employer doesn’t have to demonstrate intentional discrimination, but must have stronger evidence than the four-fifths-rule presumption of disparate impact.

What would have been "strong basis in evidence" that the New Haven test was flawed?
According to Kennedy, the only such evidence would have been evidence that "the examinations were not job-related and consistent with business necessity, or if there existed an equally-valid less-discriminatory alternative that served the City's needs but that the City refused to adopt … There is no genuine dispute that the examinations were not job-related and consistent with business necessity" and New Haven's arguments that changing the 60/40 written/oral split to a 70/30 oral/written split or reinterpreting the rule of three by basing it on whole-number test scores were not available as equally-valid less-discriminatory alternatives, since New Haven was limited by the collective bargaining agreement for written/oral weighting and was prohibited by a state court decision from rounding decimal-point test scores to whole-number test scores.

Our decision goes no further than application of the "strong-basis-in-evidence" test.
Many legal commentators had expected a broader ruling, but they didn't get it. "Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that the strong-basis-in-evidence standard would satisfy the Equal Protection Clause [of the Constitution] in a future case… [B]ecause DeStefano] ha[s] not met [his] burden under Title VII, we need not decide whether a legitimate fear of disparate impact is ever sufficient to justify discriminatory treatment under the Constitution."

Translation: We're not ruling out disparate impact as a reason to act in a future case. And we're not deciding today that the strong-basis-in-evidence test meets all constitutional standards. All we're saying is that, while DeStefano could point to the EEOC's four-fifths rule as a disparate-impact argument, he really had no other evidence to support throwing out the promotional test.

Writing for the minority, Justice Ruth Bader Ginsburg noted that the Court majority had understated the fear that New Haven had of a new round of lawsuits in connection with a NHFD promotional exam that had a disparate impact on black and Hispanic firefighters. She noted that there was a long history of race discrimination in firefighting—and in the fire-officer promotional process.

Said Ginsburg, "Like the chess player that tries to win by sweeping the opponent's pieces off the table," the majority refused to consider what New Haven was up against.

Where does this leave fire service managers in future promotional processes? Here are some observations:

Multiple-choice tests turn up again and again as suspects in test-discrimination cases, while assessment-center tests rarely do – There's a tendency on the part of some firefighters and fire managers to prefer tests that require no judgment in scoring, but those types of tests, more often than others, yield discrimination complaints. In Ricci, there's no question that what looks like a reasonably well-designed multiple choice still yielded a disparate impact.

It's extremely difficult to design a valid test instrument in a top-secret environment.

It's difficult to explain to someone how the decimal-point part of a test score determines any candidate's abilities in relation to any other candidate's – Some jurisdictions that use multiple-choice tests as part of their promotional processes round those test scores up to the nearest next whole point and then rely on interviews, simulations, in-box tests and other test elements to arrive at a final score.

Would New Haven have been better off going through a test-validation process before deciding to throw the test results out? In the wake of Ricci, the answer probably would be yes. But until the Court's ruling in the Ricci case, the law of the land was as Judge Atherton applied it. So, given the state of the law—at least until this past Monday—the mayor and Civil Service Board's actions were a reasonable exercise of risk management.

Can New Haven's black firefighters sue New Haven on the basis of disparate impact? Yes. In fact, public statements have been made that such a suit is already in the works. Ricci did not nullify the concept of disparate-impact discrimination—it limited how employers could make decisions on promotional-test validity based on application of the EEOC's four-fifths test alone. Assuming such a suit goes forward, validation of the test that Ricci requested will be undertaken.

Is Ricci the mega-blockbuster case we all thought that it would be? In terms of a dramatic change in the law as of June 29, probably not. But if the Ricci majority remains intact, Ricci is an indicator of big changes in employment-discrimination law to come.

It's illuminating to see how the experts characterize Ricci's impact:

It will probably make a big difference in a very small number of cases. 
  —Prof. Richard Primus, U of MI School of Law, interview with Nina Totenberg, NPR, All Things Considered, June 29, 2009

This decision will change the landscape of civil rights law.
—Prof. Sheila Foster, Fordham University Law School, New York Times, June 30, 2009

The Court's order and opinion, I anticipate, will not have staying power.
—Justice Ruth Bader Ginsburg: Ricci v. DeStefano

I think it has the power to change things quite a bit.
—Employment law specialist James Burns: USA Today, June 30, 2009

This case could be the Fred Thompson of the Court's term—much-anticipated but quickly forgotten.
—Prof. Eric Schnapper, U of WA School of Law: Interview with Nina Totenberg, NPR, All Things Considered, June 29, 2009

As legal scholars have more time to spend with the Ricci opinion, more clarity—and more subtleties—will probably emerge. Meanwhile, what's probably the most accurate assessment we'll see for awhile comes from Lars Etzkorn, a program director with the National League of Cities:

We don't see clear, bright-line guidance here. This is going to be good for employment lawyers.
New York Times, June 30, 2009

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