How does Ricci v. DeStefano Affect Selection Analysis?
In Ricci v. DeStefano, 129 S. Ct. 2658 (June 29, 2009), the Supreme Court, in a 5 to 4 decision, reversed the lower courts’ opinions that the City of New Haven had legally justified its decision to not certify the test administered to candidates for promotions within the fire department as part of the selection process. The City claimed that its failure to certify the promotion test was based on anticipating that they would be successfully sued by minority candidates because the results of the test they administered to candidates for supervisory positions had an adverse impact on minorities. The City’s decision not to use the test disadvantaged the white candidates who expected to be promoted and consequently sued the City.
In its decision, the Supreme Court held that the City's action constituted intentional race-based discrimination that was not justified by a valid defense, in violation of Title VII. The focus of the majority opinion was on the City’s argument that they desired to avoid unintentional adverse impact on minority candidates and discarded the test for that reason. The Court ruled that this was a case of disparate treatment in which the City did not demonstrate that it had a strong basis in evidence that it would have been sued for disparate impact if it had certified the results of the test. The plaintiffs’ claim that they were treated adversely because of their race was the primary focus of the majority opinion in this case – not the disparate impact of the test’s results.
By contrast, the Court's dissenters focused on the available alternatives and the inadequacies of the test itself, as described in some of the testimony provided as well as the amicae briefs. The Court's majority opinion seems to be more related to cases in which a failure to reach a particular number of minority group selections resulted in a modification of the normal employment process to assist the employer in meeting some desired composition.
The Ricci case did not develop substantial statistical evidence other than testimony that the test results would have removed black and Hispanic candidates from consideration for promotion disproportionately. Using the “80%” (or four-fifths) rule,1 the black and Hispanic candidate passing rates for the Captain exam were 59% of the white passing rate. Likewise the black passing rate for the Lieutenant exam was 55% of the white passing rate and the Hispanic candidates had a passing rate that was slightly more than 34% of the white passing rate. Accordingly, none of these ratios were as high as or higher than the 80% rule of thumb. The difference in selection rates was also statistically significant for both black and Hispanic candidates when compared to white candidates. But whether or not the test had disparate impact was not the question addressed by the majority opinion. The issue, for the majority, was whether the City's decision produced an adverse impact that intentionally affected candidates based on their race.
The Supreme Court's decision does not suggest that a test that has a disparate impact against a minority group must be certified and that adverse statistical evidence should be ignored. Statistical evidence of disparate impact is often used to demonstrate that a given test or selection procedure is inappropriate and should be discarded or replaced. In a recent case where selection procedures were challenged (Vulcan Society v. Fire Department of New York, ED of New York, July 22, 2009) the statistical evidence by the plaintiffs showing disparate impact was determinative in the Court’s decision granting Plaintiffs’ Motions for Summary Judgment. It is instructive to examine the difference between the two cases.
The Supreme Court found in Ricci that New Haven's desire to avoid or remedy unintentional adverse impact on minority candidates, without more, was not a sufficient justification for its challenged action. Rather, the Court ruled, to justify such a race-based selection decision, an employer was required to demonstrate "a strong basis in evidence" that its challenged employment action was necessary to prevent unintentional disparate impact against minority candidates. The Court held that the City’s evidence did not demonstrate a strong basis for the claim that it would have been liable for disparate impact discrimination had the City certified the test results.
The Vulcan Court determined that ”the relevant teaching of Ricci, in this regard, is that the process of designing employment examinations is complex, requiring consultation with experts and careful consideration of accepted testing standards. As discussed below, these requirements are reflected in federal regulations and existing Second Circuit precedent. This legal authority sets forth a simple principle: municipalities must take adequate measures to ensure that their civil service examinations reliably test the relevant knowledge, skills and abilities that will determine which applicants will best perform their specific public duties.” The need to provide a strong basis in evidence requires a thorough review of the proposed selection process and simply determining, after the fact, that the test produced adverse results is not sufficient.
In the Vulcan case, the statistical evidence was strong that the use of an inappropriately calculated cutoff score for each of the two selection tests used to fill entry level firefighter positions in New York City negatively impacted minority candidates. Specifically, the tests resulted in significantly lower passing rates for minority candidates and in far fewer minority placements on the eligibility list than expected. The City of New York had a long history of under-representation of minorities in firefighter positions. The plaintiffs provided evidence that the City of New York had taken considerably fewer steps than New Haven in validating its examination.
In Vulcan, the employment practices that the plaintiffs alleged had an unlawful disparate impact on black and Hispanic candidates for entry level firefighter positions were:
- Using the cutoff score as a pass/fail score in each of the two tests involved in this litigation, and
- Using the ranking based on a combined written and physical test score.
The plaintiffs challenged the use of an inappropriate cutoff score as a pass/fail mechanism. The statistical experts produced a variety of analyses to show that the use of the cutoff score created the disparate impact. Plaintiffs also challenged the ranking process, that combined the test score with a physical ability score, that also created disparate impact. As a consequence, the statistical evidence showed that the rankings resulted in the elimination of a large number of minority candidates who, arguably, could have been eligible for hire. Than would have been expected in a race-neutral ranking system.
Plaintiffs also challenged the test itself as being inadequate and not job-related. The statistical expert found that the correlation between items in the test that purported to be assessing the same abilities were smaller than the correlation between items that assessed different abilities. If the items had been properly constructed one would have expected to see the correlation among items testing the same ability to be much higher than the correlation between items testing different abilities. In this case, the Court found that the statistical evidence provided a strong basis for concluding that the test was inadequate and that the test did not assess for the presence of job-related characteristics that should be possessed by an entry level firefighter at the time of hire.
The Ricci decision indicates that employers carefully develop a selection procedure that includes support for the job-relatedness of the test and the proper construction of the test (including validation) in order to be able to defend the use of the test should it be found to have an adverse impact after it is used. Where the employer defends its decision to drop the test by asserting that using the selection procedure could result in liability for an unlawful adverse impact based on race, ethnicity, or gender, the courts must evaluate whether, as prescribed by Ricci, the employer has provided a strong basis in evidence for its claim.
While the Ricci Court determined that the evidence provided by the City of New Haven was insufficient to demonstrate that its actions were appropriate, the Vulcan Court was convinced that the plaintiffs had provided sufficient statistical and validation evidence to support a finding of disparate impact. These cases illustrate that if the selection processes are properly validated for the job and alternatives have a sound basis for being rejected then disparate impact would not be a sufficient reason to abandon the selection process. However, failure to properly develop selection analyses may result in difficult-to-defend decisions by the employer.
The Ricci case also reminds us that it is important to uncover and correct unexplained shortfalls in pay for all demographic groups – whites and males, as well as minorities and women. When we analyze pay or other employment decisions, we ask whether or not the decisions are “neutral” with respect to each demographic group and should not ignore results that favor minority groups while disadvantaging the majority group members.
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