50 For 50: Five Decades Of The Most Important Discrimination Law Developments - Number 24: The Supreme Court Balances TheTension Between Disparate Treatment And Disparate Impact Discrimination In Employment Testing

by Hirschfeld Kraemer LLP
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Employment tests and other selection procedures have long been part of hiring and promotional processes for many employers.  Designed and used properly, employment tests can be very effective in assisting employers to determine the candidates who are most qualified for the job.  Poorly designed, or used improperly, employment tests can result in unlawful discrimination.  Employment tests and other selection procedures can violate Title VII and other anti-discrimination laws if:  (1) an employer uses them to intentionally discriminate based on a protected status such as race, sex, age or other protected basis (“disparate treatment”), or (2) they disproportionately exclude individuals in a particular group based on race, sex, age or other protected basis (“disparate impact”). 

Title VII, as originally enacted in 1964, prohibited employment discrimination on the basis of protected minority status (“disparate treatment”).  However, following the U.S. Supreme Court’s decision in Griggs v. Duke Power Co., Congress amended Title VII in 1991 to also prohibit employers from using facially neutral tests or selection procedures that have the effect of disproportionately excluding persons based on their protected status where the test procedures are not job related and consistent with business necessity (“disparate impact”).   These dual and potentially conflicting requirements of Title VII set the stage for the U.S. Supreme Court to wrestle in Ricci v. DeStefano, 557 U.S. 557 (2009) with the issue of what actions an employer may take when avoidance of discrimination against one group may mean discrimination against another.

The employer in Ricci was the City of New Haven, Connecticut.  The City took all the right steps to avoid ending up in court with an employment discrimination claim over firefighter promotional examinations, until it took the last step.  The City retained an outside consultant to design a promotional test specifically tailored to the job duties of the captain’s and lieutenant’s positions in the City’s Fire Department.  The test-design process included performing extensive job analyses, interviewing current captains and lieutenants and their supervisors, and riding with and observing on-duty employees performing their jobs.  The consultant, at every stage of the job analyses, even over-sampled minority firefighters to ensure that the results used to develop the examinations would not unintentionally favor white candidates.  From these job analyses, oral and written examinations were developed.  The consultant also assembled a pool of 30 assessors, from outside of the State, all of whom were of superior rank to the positions being tested.  Sixty-six percent of the assessors were minorities.  The assessors were extensively trained on how to score the tests consistently.

Despite the City’s extensive efforts, the test results disproportionately favored whites.  Seventy-seven candidates completed the lieutenant’s examination – 43 whites, 19 blacks, and 15 Hispanics.  Thirty-four candidates passed the test – 25 whites, 6 blacks and 3 Hispanics.  Under the civil service rules, the top 10 candidates were eligible for immediate promotion.  All 10 were white.  Similar results were obtained for the captain’s examination, except that 7 whites and 2 Hispanics were eligible for immediate promotion following the exam.  Based on the test results, City officials expressed concern that the tests discriminated against minorities.   Ultimately, the City decided not to certify the test scores because it was concerned that doing so would result in liability based upon disparate racial impact on black firefighters.  Ironically, rather than avoiding litigation, the City ultimately found itself defending its decision to set aside the test results before the U.S. Supreme Court.

The City avoided a disparate impact case from black firefighters by setting aside the test results.  However, the white and Hispanic firefighters who had scored well on the test brought a disparate treatment suit under Title VII claiming that the City’s refusal to certify the promotion examination results based on the disparate racial impact of the examination, deprived the white and Hispanic firefighters of the promotions based on their race.  The City defended the non-certification based on its alleged good faith belief that its actions were necessary to comply with Title VII’s disparate-treatment prohibition.

The Supreme Court, noting that the purpose of Title VII was to promote hiring on the basis of job qualifications, rather than on the basis of race or other protected status, held that the City improperly discarded the examination to achieve a more desirable racial distribution.  The Supreme Court held this was illegal discrimination because the City could not demonstrate a “strong basis in evidence that, had it not taken the action, it would have been liable” for disparate impact discrimination against the minority candidates.   Merely demonstrating a statistical disparity in the examination results was insufficient to constitute a strong basis of unlawful disparate impact.

Today, the use of employment testing and selection procedures remains a hotly contested topic, particularly as technological and other advances in testing become available.  EEOC’s “Fact Sheet on Employment Tests and Selection Procedures” provides a list of what EEOC considers “best practices” for employers to follow to avoid discrimination when conducting employment testing.

 

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