[IPAC-List] Ricci v. DeStefano

[Blair, Michael D[EQ]]

I think what disappoints me the most about the Ricci v. DeStefano case is the quality of the consulting/advice that the city appears to have received from a member of our assessment community.  Granted there were pre-existing circumstances, such as civil service rules, bargaining agreements, etc., that appear to have stipulated key issues such as cut-scores and weightings, but that is no excuse for failure to follow good practice.  Before someone screams foul and attempts to argue that the consultant's hands were tied, I'll simply point out that the consultant could have said no and refused to offer services if doing so would violate good practice.

This case also serves as a strong reminder that the end user is responsible for the use of assessment solutions and the hiring practices employed within the organization.  While I'm sure the consultant does not feel good about the outcome and may have been negatively impacted by the result, it is the City of New Haven, the fire department, and the citizens that are paying the ultimate price.


Michael D. Blair
Manager, Recruitment, Selection & Assessment
EMBARQ
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-----Original Message-----
From: ipac-list-bounces at ipacweb.org [mailto:ipac-list-bounces at ipacweb.org] On Behalf Of Pluta, Paul
Sent: Thursday, April 09, 2009 2:11 PM
To: Dettling, Aaron; ipac-list at ipacweb.org
Subject: Re: [IPAC-List] Ricci v. DeStefano

Aaron--

Thanks for weighing in.

The city had begun a validation study and abandoned it when it "realized" the test would result in adverse impact.  Not only should they have known a priori that such a test would most certainly result in adverse impact, thus making the validation study necessary to make the selection test legal under Title VII, but they also should not have abandoned the validation study in favor of refusing to hire those who scored well solely on the basis of their racial profile because there is also no evidence to suggest that the test was not valid.  Hence, the appropriate way to defend the test would be to demonstrate the validity of the test and the absence of alternative procedures that would have substantively the same validity without adverse impact that would also meet their legitimate business needs.  Abandoning that responsibility is entirely on their part and they should be made to accept the consequences of that decision.  Unfortunately, they have brought the rest of us along for the ride.

The employment decision that affects Ricci is not to refer him (and the other 18 firefighters with him) for promotion because of his race.  As I mentioned previously, had the racial profile of the high scoring applicants been different, the results would most assuredly have been certified.  Hence, the high scoring applicants are being treated differently than would applicants of another racial group if they had scored equally well solely on the basis of their race because they are being forced to go back to sqare one to take another test in order to be considered for promotion.  What will the city do if the same individuals score highest on the new test?  If they don't score highest, was the first test invalid or the second?  One can only speculate.  

PP


-----Original Message-----
From: Dettling, Aaron [mailto:adettling at balch.com]
Sent: Thursday, April 09, 2009 11:16 AM
To: Pluta, Paul; ipac-list at ipacweb.org
Subject: RE: Ricci v. DeStefano

Paul--

I think most everyone would agree that the city should have had strong validity evidence supporting their selection process a priori.

However, if it is true that they did *not* have such evidence, then I would agree that they certainly painted themselves into a corner; but how is it "illegal" discrimination against Ricci to deny him a promotion, in which he had a putative interest only by virtue of a selection process that violated Title VII?

If the City *did* have undeniable evidence that the test was valid and did not violate Title VII (and that is rarely the case), then Ricci's case looks stronger.

If Ricci gets another shot at competing for the same promotion through a lawful competitive (valid) process, then I don't see how he was harmed by the City's decision to spike the test.

We'll see!

Aaron L. Dettling
Balch & Bingham LLP
1901 Sixth Avenue North, Suite 1500
Birmingham, Alabama 35203-4642
(205) 226-8723 - Phone
(205) 488-5699 - Fax
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-----Original Message-----
From: ipac-list-bounces at ipacweb.org
[mailto:ipac-list-bounces at ipacweb.org] On Behalf Of Pluta, Paul
Sent: Thursday, April 09, 2009 12:27 PM
To: ipac-list at ipacweb.org
Subject: [IPAC-List] Ricci v. DeStefano

 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







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