The U.S. Equal Employment Opportunity Commission (“EEOC”) has sued the City of Jacksonville, Florida’s firefighters union for basing promotions on a written test that few black candidates have passed. The suit raises the thorny question of whether an employer violates federal discrimination laws by requiring a written test for advancement.
According to the EEOC complaint, the Jacksonville union negotiated a collective bargaining agreement with the City in 2004 requiring written exams as part of the promotional process for the positions of Engineer, Lieutenant, Captain and District Chief. Only those candidates scoring 70% or higher are considered for employment.
The suit alleges that this process has violated the civil rights of black candidates because a disproportionately low number have passed in comparison to white candidates. For example, with respect to a 2005 written exam, the City promoted 126 candidates to the position of Engineer, only six of whom were black. The City promoted 93 candidates to the rank of Lieutenant based on 2004, 2007 and 2011 examinations, seven of whom were black.
The City’s current labor agreement expires in 2012. The suit seeks to enjoin the union from including a test requirement in the next contract, and also demands monetary damages for black firefighters who were denied promotions.
Title VII of the Civil Rights Act of 1964 prohibits intentional acts of employment discrimination, as well as facially neutral policies that have a disproportionally adverse effect on minorities. This is called “disparate impact” liability and generally requires proof of a statistical racial disparity arising from the policy.
The U.S. Supreme Court recently considered the issue of public employee testing in Ricci v. DeStefano. There, the City of New Haven had tossed out exam results for the positions of lieutenant and captain after white candidates outperformed minorities. White and Hispanic firefighters who had passed the test sued the city for reverse discrimination. The City argued that its decision was justified because black firefighters had threatened to sue under Title VII if it certified the results.
The City did not deny that its decision to abandon the test constituted a racially discriminatory hiring practice. It argued, however, that the decision should not be deemed unlawful because the City was caught in an untenable position.
The Court sided with the white firefighters, holding that fear of litigation alone did not justify discarding the test. Before taking such a discriminatory step, the City was required to present strong evidence that it would face disparate impact liability if it failed to take the race conscious action.
That showing was lacking in Ricci because the City had taken painstaking steps to ensure that the test questions were relevant to the positions in question and would not favor white candidates. This included hiring an independent firm that oversampled black firefighters to make sure the questions were fair.
The lesson from Ricci is that employers, public and private, must be careful before implementing tests for promotions. Even a facially objective exam may subject an employer to liability if the results disfavor minorities. Ricci provides one roadmap for complying with Title VII, thought the process is not cheap: The City of New Haven spent more than $100,000 to develop its test.
It is unclear from the complaint whether the City of Jacksonville took adequate steps to comply with Title VII. We will follow the case closely. Barger & Wolen attorneys are available to discuss questions you may have about testing procedures at your business.