Constitutional Law

High Court To Consider New Haven, Conn. Employment Test

By Sarah C. Crawford, Senior Counsel, Employment Discrimination Project, Lawyers' Committee for Civil Rights Under Law

On April 22, the Supreme Court will hear oral argument in Ricci v. DeStefano, a case that examines the ability of employers to safeguard equal opportunity in employment testing. This important case marks the first time in decades that the Court will examine a public employer's consideration of race in hiring or promotions.      

Ricci stems from a municipality's decision to decline to certify the results of a promotional exam that disproportionately screened out minority test-takers. The city of New Haven, Connecticut declined to certify the results because the test would have all but excluded African-Americans and Hispanics from promotional opportunities within the fire department, in light of evidence that fairer, more effective tests could be used to fill the vacancies. The Court will consider whether the city's decision to walk away from the test complied with or ran afoul of laws prohibiting race discrimination.

Background

In 2003, the city of New Haven sought to fill captain and lieutenant vacancies in the fire department by administering written and oral promotional exams to incumbent firefighters. The city administered the captain exam to 41 incumbent firefighters, including 25 white firefighters, 8 African-American firefighters, and 8 Hispanic firefighters. Based on the test results, no African-Americans and at most two Hispanics would be eligible for promotion to captain. 

The lieutenant promotional exam resulted in a similarly stark disparate impact. The city administered the lieutenant exam to 77 incumbent firefighters, including 43 white firefighters, 19 African-American firefighters, and 15 Hispanic firefighters. Based on the test results, no minorities would be eligible for promotion to lieutenant.     

Due to concerns that the promotional exams discriminated on the basis of race in violation of the law, the city held public hearings on the issue of whether to certify the test results. The city considered whether the exams were sufficiently related to the positions in question. Several New Haven firefighters testified that some of the questions were not relevant to the knowledge or skills necessary for the positions. The city also heard evidence as to whether fairer, more effective tests were available. Testing experts testified that other types of exams would not be expected to result in such a stark disparate impact. Testing experts also opined that alternative testing procedures could better identify the best potential supervisors for the fire department. These experts testified that 'assessment center processes' and 'situation judgment tests' can provide better alternatives to traditional written and oral tests. Ultimately, the city declined to certify the test results and sought to explore less discriminatory alternatives to the exams that were administered in 2003.

When the city declined to make promotions based on the test results, firefighters who had scored highly on the tests filed suit. The Ricci plaintiffs are seventeen white firefighters and one Hispanic candidate who allege that the city discriminated on the basis of race by not certifying the test results. 

The lower courts upheld the city's actions. Both the District Court and the Second Circuit concluded that the city did not discriminate by refusing to make promotions on the basis of a flawed test with a racially disparate impact. Now before the Supreme Court, much is at stake in this critical case. 

The Equal Protection Analysis

The case will likely define the appropriate analysis under the Equal Protection Clause by determining whether the city merely engaged in race-conscious action, which would be subject to rational basis review, or established a racial classification, which would be subject to strict scrutiny.  

The lower courts rejected the plaintiffs' Equal Protection claim and concluded that the city's intent to identify a test that would diminish the racial adverse impact did not create an unconstitutional racial classification. Indeed, not all race-conscious actions are treated as racial classifications under the Equal Protection Clause. As Justice Anthony Kennedy's recent concurrence in Parents Involved v. Seattle School District recognized, race-conscious actions do not always lead to differential treatment based on race, and thus, not all race-conscious actions demand strict scrutiny.   

While the Ricci plaintiffs argue that the city engaged in racial balancing, the city responds that in declining to certify the test results, it treated all of the candidates equally and did not create a racial classification. The Court's decision on this issue will determine whether the city's actions will be subject to rational basis review or strict scrutiny.  

The Title VII Analysis

Ricci is also expected to further define the scope of Title VII's safeguards against discrimination in employment testing. Title VII prohibits employers from utilizing a facially-neutral selection device that adversely affects members of one race as compared to members of another race, unless the selection device is 'job-related' and 'consistent with business necessity.' Even if the selection device is shown to be related to the position in question, employers are required to adopt less discriminatory procedures if valid alternatives exist. 

As the Court recognized in the seminal cases of Albemarle Paper Co. v. Moody and Griggs v. Duke Power Co. over three decades ago, the primary purpose of Title VII was a prophylactic one. These early decisions recognized that Title VII was intended 'to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.' 

Here, the city of New Haven acted to fulfill its obligations under Title VII when it became clear that the promotional tests disproportionately screened out minority test-takers. The city conducted multiple public hearings and heard evidence that less discriminatory, equally valid selection devices were available. In the end, the city declined to make promotions on the basis of a flawed test. 

In essence, the plaintiffs ask the Court to ignore Title VII's directive for employers to explore valid, less discriminatory alternatives to tests that disproportionately screen out candidates of a particular race. The plaintiffs seek to establish a rule that would tie employers' hands by forcing them to make employment decisions on the basis of tests that prove to be discriminatory in operation.     

At stake in Ricci are equal employment opportunity safeguards that have been in place for decades to encourage employers to utilize tests that are both fair and effective. These safeguards recognize the reality of implicit bias and encourage employers to identify and correct bias in selection procedures proactively. 

Full post as published by ACS Blog on April 20, 2009 (boomark / email).