[IPAC-List] Ricci v DeStefano

[Crenshaw, Jeffrey]

I would agree with RPClare that a lawsuit will be looming as they
certify their list.  As such, I am wondering what impact this ruling
would have on any lawsuit (if it comes) regarding certifying that list
and other related Title VII disparate impact cases.  Two questions in
particular come to mind:

1.  What is the impact, if any, of this ruling on demonstrating the
job-relatedness of test weights in traditional disparate impact cases?
2.  What is the impact, if any, of this ruling on consideration of
equally valid alternative selection measures?

The court opinion appears to indicate (but not explicitly so) that the
selection procedure administered by New Haven would withstand a legal
challenge despite the issues identified by the respondents.  In a
traditional disparate impact case, once AI is established the city would
have to demonstrate that the selection procedure is job-related.  The
selection procedure not only includes the tests used, but also the
manner in which the tests are combined (or weighted) to form a composite
score.  With regard to weights in this case, the Court stated:
" respondents have produced no evidence to show that the 60/40 weighting
was indeed arbitrary.  In fact, because that formula was the result of a
union-negotiated collective-bargaining agreement, we presume the parties
negotiated that weighting for a rational reason."  

Given that this case was the reverse of most Title VII cases, the burden
of proof was not on the City to demonstrate job-relatedness...in fact
doing so would that would have potentially undermined their argument;
however, the Court seems to easily discount that potential concern
regarding the defense of the test and appears to indicate that a
"rational" reason for the weights would suffice (i.e., instead of
demonstrating that the weighting was either job-related or more valid
than alternative weighting methods).  Thus, could this ruling be used to
lower the bar in defining "job-relatedness" in a traditional disparate
impact case?  What if, in this case, traditional methods of using job
analysis data to calculate test weights would lead to substantially
different weights (e.g., 30% WT, 70% SI) than what was bargained with
the union?  By all accounts, one would expect (even before
administration) that the job analysis weights in that example would
reduce AI (compared to 60% WT, 40% SI).  As a result of the Ricci ruling
would New Haven have the luxury of countering any such arguments in
disparate impact litigation by saying that they collectively bargained
the weights for a "rational" reason?  

The same type of questions could apply to the alternative testing
methods argument (e.g., assessment center).  I won't belabor the issue
by listing all of those questions and scenarios, but I am interested in
any opinions on the impact of this ruling on any potential disparate
impact case that could result from certifying the test.  


-----Original Message-----
From: ipac-list-bounces at ipacweb.org
[mailto:ipac-list-bounces at ipacweb.org] On Behalf Of RPClare at aol.com
Sent: Thursday, July 02, 2009 4:00 PM
To: ppluta at hr.lacounty.gov; IPAC-List at ipacweb.org
Subject: Re: [IPAC-List] Ricci v DeStefano

As the city moves to utilize the list, the suit looming may be regarding

the artificial restriction of hiring to a rule of 3. I can't imagine  
justification exists to support that when a broader, more statistically
defensible 
approach may reach more protected class members. The downside to the  
current rule is not that protected class members will "just have to
wait" but  
that seniority in fire services impacts so many other things including 
training  availability and choice of assignments. Promotional
opportunities are 
critically  impacted by seniority and training completed. In these
economic 
times,  promotional opportunities could easily be unavailable for years
if not 
a decade  or more.
 
 
In a message dated 7/2/2009 3:47:42 P.M. Eastern Daylight Time,  
ppluta at hr.lacounty.gov writes:
 
The  courts have already weighed-in on voluntary affirmative action 
programs.   However, there is no indication that the City of New Haven
had a 
voluntary  affirmative action program in place.  If it did, perhaps it
would have  
developed a different selection plan to better achieve its goals.   
Affirmative action plans are usually strategic and address how a
manifest  racial 
imbalance is to be corrected over a specified period of time.  A  post
hoc 
race-based decision is in no way an application of affirmative  action:
it is 
a knee-jerk reaction that was taken to achieve some non-specific  goal.
Had 
the City and its employees acted more deliberately and  consistently,
they 
might not have looked like such buffoons and we wouldn't  have all been
put 
through this nonsense.

Don't even get me started with  the strict application of the 4/5 rule
with 
small sample sizes.  You  would think that nobody ever heard of sampling

error.  It is interesting  that we also run into that problem in LA
where 
whites are usually not the  majority group; at least not a very large
one.  With 
small sample sizes  (i.e., small examinations) impact calculated using
the 
4/5 rule-of-thumb  shifts across different groups from administration to

administration.   However, if one looks at the results across time, the
impact 
tends to  disappear.  Fancy that!

Paul E. Pluta, MA, SPHR
Human Resources  Analyst III
Los Angeles County Department of Human Resources
Workforce  Planning, Test Research, & Appeals Division

-----Original  Message-----
From: Crenshaw, Jeffrey [mailto:crenshawj at PBJCAL.ORG]  
Sent: Thursday, July 02, 2009 12:26 PM
To: Eric Palmer;  IPAC-List at ipacweb.org
Subject: Re: [IPAC-List] Ricci v DeStefano

To  help address Eric's statement ("I'm not even sure
underrepresentation 
is still  an issue in the (New Haven) fire department"), the dissenting 
opinion presents  info (below) to shed light on that issue.  Despite 
litigation-induced  efforts, it appears there that minorities are still
substantially  
underrepresented at the officer ranks (i.e., assuming the data in the  
dissenting opinion is correct): 

- "In the early 1970's,  African-Americans and Hispanics composed 30 
percent of New Haven's population,  but only 3.6 per-cent of the City's
502 
firefighters... [O]f the 107 officers  in the Department only one was
black, and 
he held the lowest rank above  private." 

- "New Haven's population includes a greater pro-portion of  minorities 
today than it did in the 1970's: Nearly 40 percent of the City's
residents are 
African-American and more than 20 percent are Hispanic. Among
entry-level 
firefighters, minorities are still underrepresented, but not  starkly
so. As 
of 2003, African-Americans and Hispanics constituted 30 percent  and 16 
percent of the City's firefighters, respectively. In supervisory
positions, 
however, significant disparities remain. Overall, the senior  officer
ranks 
(captain and higher) are nine percent African-American and nine  percent

Hispanic. Only one of the Department's 21 fire captains is
African-American."  

-----Original Message-----
From: Eric  Palmer [mailto:epalmer613 at yahoo.com] 
Sent: Wednesday, July 01, 2009 10:27  AM
To: IPAC-List at ipacweb.org; Mark Hammer
Subject: Re: [IPAC-List] Ricci  v DeStefano

Mark,

You make some very good points.   One reason I don't think the New Haven

case will change the contours of the  discussion radically is that New
Haven 
seems an unusual case.  One of the  salient facts of the New Haven case,
as I 
understand it, is that they have a  history (at least the last couple of

decades) of being very effective at  addressing underrepresented groups
and 
increasing their representation.   I'm not even sure underrepresentation
is 
still an issue in the fire  department.  In fact it goes beyond being 
effective: they've received  warnings from several courts on several
occasions for 
deliberately skirting  the law in order to hire minority candidates over

white candidates.  The  evidence, such as it is, seems to suggest that
this is 
less related to HR  concerns about underrepresentation or the bias of
exams, 
and more related to  the mayor solidifying his political base of power.
As 
I read the court  decision, this is what drove the majority
opinion toward seeing the city's  arguments as pretexts, and their
decision 
to throw out the test as one more  step in an ongoing trend.

There are of course many people,  especially in this group, who
understand 
the facts of this case much better  than I, and I welcome any feedback
if my 
facts are wrong.

Eric  Palmer
City of Fort Worth

--- On Wed, 7/1/09, Mark Hammer  <Mark.Hammer at psc-cfp.gc.ca> wrote:


From: Mark Hammer  <Mark.Hammer at psc-cfp.gc.ca>
Subject: Re: [IPAC-List] Ricci v  DeStefano
To: IPAC-List at ipacweb.org
Date: Wednesday, July 1, 2009, 7:07  AM


I'm not deeply steeped in this stuff with respect to the legal  aspects,
so 
I'll add an outsider's view.

Seems to me that one of the  aspects of such cases that never gets 
discussed is...time.  In other  words, the actions of New Haven were
based partly on 
one point in time (i.e.,  we don't have enough of THESE demographic 
group-members at THIS point in  time), as opposed to any assumption
about what 
could happen over time in the  future (i.e., we didn't meet our goals
today, but 
we will eventually).   The perspective of the plaintiffs was also based
on 
time: "But I qualified  NOW.  Why are you telling me that I will have to

wait  longer?".

Here in Canada, a 2000 report on increasing the  representation of
visible 
minority members in the federal public service (the  so-called Perinbam 
Report) recommended aiming for 20% of all new recruits to  be visible
minority 
members.  This target is, at present, well in excess  of their actual
labour 
market availability.  So why such a high  proportion?  Simple - to make
up 
for lost ground.  Members of  under-represented groups ask a very
legitimate 
question: "If not now,  when?".  And the answer to the question can't
be, 
nor should it be,  "Wait.  It will happen eventually."  Of course, this
is not 
the  perspective of those who see things like a 20% hiring target as an 
artificial  quota and.....wait for it.....a basis for valuing
demographic 
characteristics  over merit, when it comes to hiring.  Still, the
forecasting 
people look  at our influx and outflow, and say "Jeez, if we stick with
a 
target of 12% or  even 15% in recruitment, it's gonna take us
another 10 years or more to  simply 
be juuuuuuust a little bit behind LMA.".  And, like it or not,  rate of 
accomplishment conveys a message that can easily speak louder than  what

management says.  I.E. "They talk a good game, but how come I don't  see
any <XX> 
faces in here YET?"

So, from where I stand, a great  deal of this debate revolves around
time, 
how long people think things  *should* take, and what organizations do
(or 
not) to meet the time-related  expectations of different agendas.  Some
of 
those agendas are clearly  based on a sort of restitution model (i.e.,
we've 
been "shut out" for too long  a time, let us in), and other agendas - 
particularly in a country based so  much on immigration - are based on a

the-government-has-to-reflect-the-country  model.  Certainly some of
those 
time-related concerns can be addressed by  the types of tools available
and used.  But 
it takes more than  that.  It takes messages, and "authentic acts"
(i.e., 
acts of  demonstrable integrity and sincerity), to create the sort of
patience 
needed  to fill in what selection procedures themselves cannot do.  It
is  
unreasonable to expect the selection process and tools alone to
accomplish a 
 broader social agenda at the pace that people expect. 
However, it is  unreasonable to expe
ct the social agenda to simply ignore the passage of  time.  There is a 
world - already in progress - that employers in all  sectors have to
face.

Mark  Hammer
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