[IPAC-List] Ricci v. DeStefano

[Pluta, Paul]

 Having reviewed the case and after reading the many amicus briefs
submitted by a variety of interested parties, I would like to contribute
my two cents worth regarding this case.

 

Overview

 

Ricci v. DeStefano is a case currently before the Supreme Court that
deals with important issues pertaining to equal employment opportunity.
Ricci involves the decision by the City of New Haven not to certify the
results of a civil service exam administered to firefighters on the
ground that certifying the list generated by the exam results would have
resulted in adverse impact. A group of high-scoring applicants (14 white
and one Hispanic) were not promoted when the city declined to certify
the test results.  These applicants argue that the city discriminated
against them based on their race in violation of Title VII and the Equal
Protection Clause of the U.S. Constitution. The city contends that it
was fulfilling its obligation to avoid race discrimination by refusing
to rely on a flawed and discriminatory test. The lower courts sided with
the city and dismissed the case. Now the Supreme Court will decide: did
the city violate the laws against race discrimination, or uphold them?

 

 

Plaintiff's Situation

 

Frank Ricci studied extensively for a Fire Lieutenant's written exam and
earned a top score.  There were 15 positions open and the top 15 scorers
on the examination comprised 14 Whites and one Hispanic.  Because no
African American applicants would be eligible for promotion based on the
results of the competitive examination, the Civil Service Board for the
city of New Haven refused to certify the list and nobody was promoted.

 

City's Argument

 

The test resulted in adverse impact on African Americans and, in order
to avoid a potential lawsuit, decided not to certify the list.  The city
believed it was justified because, in their view, adverse impact
violates Title VII.

 

            What's wrong with this position? 

*         Adverse impact is not, in and of itself, an automatic
violation of Title VII

*         Griggs v. Duke Power Company decision was that any test that
does result in adverse impact must be shown to be job-related and
consistent with a business necessity.  Hence, Title VII does not
prohibit tests that result in adverse impact per se, but only those that
cannot be shown to be job-related and consistent with a business
necessity.

*         The employer is obligated (hopefully a priori to avoid the
Catch 22 situation the City of New Haven found itself in) to use any
other equally valid test that would meet its legitimate needs and not
result in adverse impact.

*         Using race as a determining factor in an employment decision
is a violation of Title VII under the theory of disparate treatment.

 

Ricci's Argument on Behalf of Himself and 19 Other Firefighters

 

"To have the city throw it ( the test) out because you're white or
because you're not African American is insulting."

*         It is indisputable that had the results of the test (by some
miracle defying all known probability) comprised a different racial
profile, the results would have been certified.  Hence, those who scored
highest on this exam were treated differently because of their race.

*         The employment decision in this case where race was a
determining factor was the decision not to refer the top scorers for
promotion.

 

Current Status of Case

 

Second Circuit Court ruled in favor of the city.  As of April 7, 2009,
the U.S. Supreme Court has agreed to hear the case.

 

Important Factors to Consider

 

Affirmative Action -

*         There appears to have been a manifest imbalance based on
history because although African Americans comprise 31% of New Haven's
221 firefighters, only 15% are officers - eight of 42 Lieutenants and
one of 18 Captains.

*         The City of New Haven makes no mention regarding having a
voluntary affirmative action plan in place.

*         A voluntary affirmative action plan would identify the
specific imbalance it was implemented to correct, the plan for
correcting the imbalance, and a timeline for achieving the correction.

 

Breaking Eggs to Save Baby Chickens -  

*         The City of New Haven is attempting to avoid breaking one part
of a law (which would never be broken if they adhered to the Uniform
Guidelines in the first place) while deliberately breaking another part
of the same law.  Hence, the law has still been broken.

*         It is more likely that they decided to deliberately trammel
the legitimate rights of one group of applicants for fear of being sued
by another group of applicants.

 

Paul's Opinion

 

Due to gross malpractice, the City of New Haven painted itself into a
corner.  Two wrongs don't make a right.  If the city wanted to avoid
adverse impact, the individuals in charge of the examination process
should have been aware of the literature and known a priori that a
written test utilizing top-down selection would most certainly result in
adverse impact.  With this knowledge, they should have had clear
evidence of the job-relatedness of the test and evidence for how the use
of this testing procedure, versus other available testing procedures,
was the most appropriate to meet its legitimate business needs.
Instead, they appear to want us to excuse their incompetence and
sanction illegal discrimination against one group in order to prevent
possible illegal discrimination against another. (I emphasize possible
because it would not be illegal discrimination if the test could be
shown to be job-related and consistent with a business necessity, and
that no alternative method of substantively equal validity is available
that would not result in adverse impact.)

 

If affirmative action was a deliberate objective, the city should have
implemented a voluntary affirmative action plan designed to achieve its
affirmative action goals.  Stating after-the-fact that they have some
lofty affirmative action goal that justifies their disparate treatment
of the 14 White and one Hispanic applicants who participated in a civil
service examination in good faith is unconscionable and somewhat
ridiculous.

 

It is our responsibility as human resources professionals to develop
selection tests that meet the legitimate business needs of our
respective organizations, which include balancing the need for test
utility with the social goals of fairness and equal opportunity.
Strategic human resources management is needed to integrate these
multiple goals into all human resources programs.

 

IMHO

 

Paul E. Pluta, MA, SPHR