Professional Service Agreement

Supreme Court Rule for New Haven Firefighters

July 29, 2009

Rights Rejected for Promotion Win – What Effects Will This Case Have on SESCO Clients?

The Supreme Court recently ruled that the City of New Haven, Connecticut, violated Title VII of the Civil Rights Act of 1964 when it tossed the results of firefighters' promotion exams on the premise that certifying the results would lead to disparate impact litigation.

The case, Ricci et al. v. DeStafano et al., (No. 07-1428), began when the city refused to certify the exam results when it appeared no black or Hispanic applicants would be eligible for promotion to the rank of Lieutenant and no black applicants and, at most, two Hispanic applicants would be eligible for promotion to the rank of Captain. Expressing a fear of possible litigation from non-promoted, nonwhite applicants if the results were certified, the city refused to certify the exams and no promotions were made. Eighteen candidates, 17 white and one (1) Hispanic, filed suit under Title VII and other federal and state laws alleging the refusal to certify was racially discriminatory and was effectively "reverse" discrimination.

The city's position was affirmed when federal district court granted the city's motion for summary judgment, holding that New Haven's motivation to avoid making promotions based on a test with a racially disparate impact, even in a political context, does not, constitute discriminatory intent. Therefore, such evidence is insufficient for plaintiffs to prevail on their Title VII claim. The Second Circuit Court of Appeals later affirmed the decision.

However, in writing the Supreme Court's decision that overturned the lower courts' rulings, Justice Kennedy stated that:

"Whatever the city's ultimate aim — however well intentioned or benevolent it might have seemed — the city made its employment decision because of race. The city rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the city had a lawful justification for its race-based action."

In other words, "fear of litigation alone" did not justify New Haven's action to throw out test results and deny white firefighters their opportunity for promotion.

Disparate Impact in Question

This ruling has caused some to question how this will impact on Title VII's prohibition on "disparate impact". Disparate impact prohibits employers from using neutral tests or selection procedures that have the effect of disproportionately excluding persons based on race, color, religion, sex, or national origin, where the tests or selection procedures are not job-related and consistent with business necessity.

To sort out what all this could mean for employers and testing, it is helpful to consider the history of discrimination law. Title VII of the Civil Rights Act of 1964, the statute at issue in the Ricci case, provided a straightforward command to employers: Discrimination on the basis of race or other protected characteristics, including sex and national origin, is illegal. This appeared to be simple to interpret, but the simple proved to be complicated. An employer of blue-collar workers in North Carolina, Duke Power, required a high school diploma and an IQ test of all job applicants, a requirement that screened out some 88 percent of black applicants in that region at that time.

This resulted in a 1971 Supreme Court ruling that said a test such as the one used by Duke Power that was "fair in form, but discriminatory in operation" could violate Title VII even without proof that the discrimination was intentional. Congress eventually amended Title VII to codify that decision in the Duke Power case which has come to be a landmark civil rights ruling, called Griggs v. Duke Power (401 U.S. 424,1971). The rule was clear: If a job requirement produced a "disparate impact," the employer had the burden of showing that the requirement was necessary. Otherwise, the test (or any other requirement for employment or promotion) would be discriminatory.

Ricci leaves employers who use testing as part of their promotion or pre-employment process wondering how to respond. It effectively creates a "Catch-22" concerning testing. It may also be problematic for those employers that have implemented an affirmative action plan (either voluntarily or as required by law for certain businesses) that is designed to promote workplace diversity. Ricci could cause affirmative action efforts to be questioned as they might result in employers being taken to task for hiring or promoting minority candidates over non-minority candidates.

Issues to Consider

Whereas in the past employers could be clear that tests that result in disparate impact are illegal and should not be used, Ricci now requires employers who currently use or who are considering testing to choose between two opposing and unclear courses of actions:

1. Continue testing, while understanding that the potential for discrimination claims now exists from both minorities and non-minorities.

2. Discarding tests, even though they are a proven method (in addition to other processes) for determining the best candidates to hire or promote?

Before discarding tests, employers should reflect on how tests are used. Following are the major categories of employee testing and what they intend to measure or identify:

• Aptitude test¬s — These are typically are used to determine ability and/or knowledge. General aptitude tests include the Wonderlic Personnel Test that can also be considered an intelligence or IQ-test. Other tests that are intended to measure specific aptitude include the Wiesen Test of Mechanical Aptitude.

• Personality tests — These include honesty, reliability (attendance, punctuality, etc.) and integrity tests, often used in the financial services industry. Some personality tests are designed to be used by psychologists while others can be interpreted by non-psychologists.

• Skills Testing-These include computer skills testing, math and English skills, and industrial skills testing.

• Style or Preference Indicators¬¬ — These include the Myers-Briggs Type Indicator, the DISC personality profile or the Insight Indicator. These tests do not reveal aptitude or ability, but help those tested to develop self-awareness about their pattern of interaction with others. They are often used in team-building exercises to get the proper mix of styles on a team. They can also assist in assessing candidates for a particular position to help the interviewer determine if the candidate is a good fit for the work group he or she might be assigned, based on the style of other group members.

SESCO Staff Recommendations

The following questions should be considered before employers decide to begin (or discontinue) any type of test to determine opportunities for employment or advancement.

1. Why test? This seems like an obvious question, but a testing program should not be undertaken lightly. Just because another "company is doing it" is no reason to test or discontinue testing. Companies should have legitimate business reasons for testing and be very clear on those reasons. However, SESCO recommends testing as a viable tool for assessing employees for hire or promotion.

2. Make sure tests are both reliable and valid. Reliability is the consistency of your measurement, or the degree to which an instrument measures the same way each time it is used under the same condition with the same subjects. For example, a test would not be considered reliable if it were administered to the same applicant multiple times with wide variation in the results. Validity is the degree to which the test actually measures what it is intended to measure. Please know that validation is not a stamp of approval by any governmental agency, but rather a study undertaken and directed by the test publisher in accordance with certain professional standards. SESCO can assist in making sure your testing programs are effective and compliant.

3. Be sure to comply with the Americans with Disabilities Act as Amended of 2008 and offer accommodation to applicants or candidates for promotion. This could include but not be limited to offering a reader/scribe, extended time, assistive technology, or other accommodations as appropriate. Please keep in mind that the accommodation need only be reasonable. If the accommodation actually involves providing assistance in an ability that is actually an essential function of the job, the employer would not be required to offer it. For example, if the position in question requires that the employee or applicant be able to read without assistance, the employer would not be required to offer a reader to assist with taking the test. SESCO can help ensure ADA compliance by helping you draft policies and procedures that are compliant. We also have forms that serve to advise applicants of their right to accommodation under the Act.

4. When possible, do not make the test the sole determinant of whether a candidate is hired or an employee is promoted. In other words, tests should compliment other screening processes including interviews, reference checks and past work performance. This is critical as test results, when considered in a vacuum, are not always the best predictors of future performance. SESCO can assist with the development of a comprehensive customized screening process that is compliant and effective.

In summary, the legal climate on employee testing will continue to be muddled until case law or further Supreme Court rulings clarify to the issue. SESCO will keep you advised on any court rulings that may impact Ricci. In the meantime, SESCO can assist in assessing your testing programs to ensure validity, reliability and effectiveness. We provide results-oriented testing and assessments for hire and promotion. These can be viewed at – click on "Testing."