[IPAC-List] Ricci v DeStefano

Eric Palmer epalmer613 at yahoo.com
Wed Jul 1 08:51:04 EDT 2009

I agree with Bryan; in my mind this doesn't change the playing field a whole lot.  My read of the decision is that the court considered the City's concerns about the validity of the test to be largely a pretext for "reverse discrimination."  Since the court saw this as the primary motivating factor, and since there was evidence that the test in fact displayed a high degree of validity, the City's concerns about the threat of adverse impact were inadequate to protect and justify their action.  I was also pleased that they reiterated the long-time primcipal that the validity of this test would offer protection from an adverse impact suit.  While these are not new principles, it is good to see them strengthened in the highest court.  As for the issue of the existence of a test with equal validity and less adverse impact: to my knowledge it has always been the case (ok, at least for many years) that knowledge of an alternate test with (a) equal
validity and (b) less adverse impact, and (c) that is not ruled out by business necesity (e.g. prohibitively expensive) is what triggers the requirement to use an alternate test; and the alternative must meet all three tests.  As has already been mentioned in this discussion, we don't know that there is such an alternate exam (evidence, and expert opinion, lean both ways); and in any case the suggestion of such an alternate exam came only after implementation of the original exam.
Eric Palmer
City of Fort Worth

--- On Tue, 6/30/09, Bryan Baldwin <Bryan.Baldwin at doj.ca.gov> wrote:

From: Bryan Baldwin <Bryan.Baldwin at doj.ca.gov>
Subject: Re: [IPAC-List] Ricci v DeStefano
To: IPAC-List at ipacweb.org
Date: Tuesday, June 30, 2009, 2:25 PM

Having now read the whole thing (okay, I haven't read the dissenting opinions yet) I am struck by how little this seems to change things.  There's some stuff in here that can make us feel good about validation work, but seems to me the court essentially said, "An employer, on rare occasions, can engage in disparate treatment to forestall liability for disparate impact, but you simply haven't shown enough evidence to convince us that you would lose a disparate impact case."

>>> "Aamodt, Michael G" <maamodt at RADFORD.EDU> 6/30/2009 2:13 PM >>>


I don't read it quite that way. I think they key thing is WHEN they knew it. Once the testing was done, it was too late to consider "potential" alternatives. Assessment centers have significant black-white differences (Dean, Roth, & Bobko, 2008) and would also have adverse impact. Furthermore, there is no guarantee that assessment centers would have equal validity to a combination of job knowledge and what amounts to a structured interview. What I took away from reading the opinion is that the court believed that the job analysis and test construction process were reasonably done and job related. As a result, the City would have survived a challenge. I think to automatically ASSUME that an assessment center would have equal validity and lower adverse impact to any combination of assessments is not supported by the literature.



Michael G. Aamodt, Ph.D. (Mike)
Professor Emeritus
Department of Psychology
Radford University
Radford, VA  24142-6946
(202) 280-2172
maamodt at radford.edu
http://maamodt.asp.radford.edu <http://maamodt.asp.radford.edu/>


From: ipac-list-bounces at ipacweb.org on behalf of Mitch Stein
Sent: Tue 6/30/2009 5:02 PM
To: ipac-list at ipacweb.org
Subject: Re: [IPAC-List] Ricci v DeStefano

My read of the Court's majority opinion is that they seem to have validated an "ignorance is bliss" defense. They seem to focus on the fact that even though there were better alternatives New Haven could have chosen (e.g. assessment center), since this was only mentioned once to them the CSB had no clear knowledge that there were alternatives with equal (or better) validity that would likely produce less disparate impact.  Therefore it was this lack of knowledge that made it impermissible for them to intentionally commit disparate treatment.

Anyone else read their opinion the same way?


Mitchell Stein, PhD
Human Resources Research Psychologist
TN Dept. of Human Resources
(615) 532-8069

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