[IPAC-List] USSC rules against New Haven, CT

[Bryan Baldwin]

It appears they may not NEED to defend the test anymore since the court
essentially lays out a successful defense at the end.  It's really a
bizarre situation: you can intentionally discriminate if you can
successfully argue you would lose a disparate impact case (which they
suggest the City wouldn't), and you can have adverse impact as long as
you can successfully argue that deciding the other way would leave you
liable for disparate treatment.  Then again they suggest the City would
win anyway given its evidence.  I think I need a flow chart.


>>> <rpclare at aol.com> 6/29/2009 9:23 AM >>>

This really connects to the internal vs external discussion. Most
smaller jurisdictions cannot afford the level of expertise to do it then
defend it. "Management" must have confidence in their internal resources
so they and their lawyers don't make what, on the surface, seems like a
bureaucratically expedient decision. Even a consultant-type oversight
committee can bolster internal resources.
------Original Message------
From: Bryan Baldwin
Sender: ipac-list-bounces at ipacweb.org 
To: IPAC-List at ipacweb.org 
Subject: [IPAC-List] USSC rules against New Haven, CT
Sent: Jun 29, 2009 11:25 AM

FYI, the US Supreme Court ruled today (5-4) against the city of New
Haven, CT and its decision not to use an employment list that it
anticipated would result in adverse impact:

http://www.lawmemo.com/blog/2009/06/city_violated_t.html 

Not particularly surprising given the tone of oral arguments.  It will
be interesting to see how this influences things--if at all--beyond
making employers think twice about what tests to use.  Which maybe is
a
good thing.

Some quick points:

- The court focused heavily on the "race-conscious" nature of the
decision and the inability of the City to argue it was warranted.

- The court did not find any evidence that the test was "deficient"
when it came to being job-related and consistent with business
necessity, nor did it find evidence of an equally valid alternative
with
less adverse impact.  In fact the court noted "detailed steps taken to
develop and administer the tests and the painstaking analyses of the
questions asked to assure their relevance to the captain and
lieutenant
positions."

- Perhaps most interestingly, the court notes at the end of the
decision that "If, after it certifies the test results, the City faces
a
disparate-impact suit, then in light of today’s holding the City can
avoid disparate-impact liability based on the strong basis in evidence
that, had it not certified the results, it would have been subject to
disparate-treatment liability."

Clear as mud?



Bryan Baldwin
Staff Services Manager II
California Department of Justice
Division of Administrative Support
Personnel Programs
(916) 322-5446


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