[IPAC-List] Ricci v DeStefano - Adverse Impact?

[Deonda.Scott at CityofOrlando.net]

Excellent points.  I'd like to thank all those who have posted on this 
topic.  I've really enjoyed all the informed discussion. 

One thing that I think hasn't been discussed is the fact that the adverse 
impact was calculated based only on the number of positions that were open 
at the time the list would have been certified.  However, once certified, 
the promotional eligibility list would have been used to make promotions 
for any openings for the two year life of the list.  If my understanding 
of the Uniform Guidelines is correct, adverse impact is calculated based 
on the selection numbers that were the result of the entire process and 
implementation. In other words, you'd have to wait to see who got promoted 
off the list during the two year life of the list to accurately calculate 
the adverse impact of the promotional exam process. As more openings 
occurred, we can guess that lower scoring candidates would have been 
eligible for promotion. 
  
Déonda Scott
Employment, Assessment and Development Manager
City of Orlando
400 S. Orange Ave.
Orlando, Florida   32802-4990
Phone: (407)246-2061 Fax: (407)246-2019

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From:
"Dettling, Aaron" <adettling at balch.com>
To:
"'Lance Seberhagen'" <sebe at erols.com>, "'Pluta, Paul'" 
<ppluta at hr.lacounty.gov>
Cc:
"'IPAC-List at ipacweb.org'" <IPAC-List at ipacweb.org>
Date:
07/10/2009 10:04 AM
Subject:
Re: [IPAC-List] Ricci v DeStefano - Adverse Impact?
Sent by:
ipac-list-bounces at ipacweb.org



Lance, I'm afraid this is an over-reading of the Ricci decision.  The 
scotus in no way endorsed the 4/5 rule alone as the measure of adverse 
impact or rejected statistical significance as part of a plaintiff's 
burden of proof.  Rather, the Ricci plaintiffs admitted that the city was 
faced with a prima facie case of disparate impact (maybe wrongly); 
therefore, the Court's statements about a prima facie case of disparate 
impact are mere dicta.  Let's remember at the end of the day, the Court's 
ultimate ruling was that there was NOT a strong basis in evidence that a 
disparate impact claim against the City would have been successful, i.e., 
there was not a strong basis in evidence to conclude that african-american 
plaintiffs would have ultimately been able to sustain their burden of 
proof on AI AND that the city could not have carried its burden of 
establishing that the test was job related and consistent with business 
necessity.

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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________________________________
From: ipac-list-bounces at ipacweb.org [mailto:ipac-list-bounces at ipacweb.org] 
On Behalf Of Lance Seberhagen
Sent: Thursday, July 09, 2009 6:59 PM
To: Pluta, Paul
Cc: IPAC-List at ipacweb.org
Subject: Re: [IPAC-List] Ricci v DeStefano - Adverse Impact?

What is the standard for adverse impact?  Is it (1) the 80% Rule, (2) 
statistical significance, (3) either one, or (4) both together?  The 
Supreme Court's majority decision in "Ricci" (page 27) was notable for its 
strong endorsement of EEOC's "80% Rule" from the Uniform Guidelines on 
Employee Selection Procedures as the standard (or perhaps merely "a 
standard") for determining adverse impact, regardless of statistical 
significance.  My analysis below focuses on blacks vs. whites, but the 
results would be the same for Hispanics vs. whites.

Lieutenant Exam

The New Haven Lieutenant exam had two major stages: (1) test and (2) 
certification.  On the test, the passing rate of blacks was 31.58% (6/19), 
compared to 58.14% (25/43) for whites.  Thus, the adverse impact was 
54.32%, which is significant under the 80% Rule.  But if one applies a 
statistical significance test (Fisher's Exact Test) to the passing rates 
of the test, the probability is 9.71% (or 1.66 SD units), which is not 
statistically significant.  The next stage of the exam was certification. 
The certification rate for blacks would have been 0.00% (0/6), compared to 
40.00% (10/25) for whites, resulting in an adverse impact of 0.00%, which 
is significant under the 80% Rule.  But using Fisher's Exact Test, the 
probability of the certification stage would have been 14.11% (or 1.47 SD 
units), which is not statistically significant.  Only if one combines the 
test and certification stages ("overall selection") is there a 
statistically significant difference between blacks and 
 whites.  The overall selection rate of blacks was 0.00% (0/19), compared 
to 23.26% (10/43) for whites, resulting in an adverse impact of 0.00%, 
which is significant under the 80% Rule.  Using Fisher's Exact Test, the 
probability of the overall selection rates would have been 2.43% (or 2.25 
SD units), which is statistically significant.

Captain Exam

Nothing was statistically significant in the Captain exam.  The New Haven 
Captain exam had two major stages: (1) test and (2) certification.  On the 
test, the passing rate of blacks was 37.50% (3/8), compared to 64.00% 
(16/25) for whites.  Thus, the adverse impact was 58.59%, which is 
significant under the 80% Rule.  But if one applies a statistical 
significance test (Fisher's Exact Test) to the passing rates of the test, 
the probability is 23.79% (or 1.18 SD units), which is not statistically 
significant.  The next stage of the exam was certification.  The 
certification rate for blacks would have been 0.00% (0/3), compared to 
43.75% (7/16) for whites, resulting in an adverse impact of 0.00%, which 
is significant under the 80% Rule.  But using Fisher's Exact Test, the 
probability of the certification stage would have been 26.32% (or 1.12 SD 
units), which is not statistically significant.  Looking at the test and 
certification combined, the overall selection rate of blacks was
  0.00% (0/8), compared to 28.00% (7/25) for whites, resulting in an 
adverse impact of 0.00%, which is significant under the 80% Rule.  Using 
Fisher's Exact Test, the probability of the overall selection rates would 
have been 15.43% (or 1.42 SD units), which is not statistically 
significant.

Discussion

The Court ruled that both exams had adverse impact, even though there were 
no statistically significant differences in either the test or the 
certification components of either exam.  The overall selection (test + 
certification combined) rates had adverse impact on the Lieutenant exam 
but not on the Captain exam.  Thus, it looks as if adverse impact does not 
require both the 80% rule and statistical significance, and we're not too 
sure about statistical significance.

On the Lieutenant exam, there were no statistically significant 
differences on the test alone or certification alone, but the overall 
selection rates (test + certification combined) were statistically 
significant.   However, under Section 703k(1)(B)(ii) of Title VII, "If the 
respondent demonstrates that a specific employment practice does not cause 
the disparate impact, the respondent shall not be required to demonstrate 
that such practice is required by business necessity."  In "Ricci," if the 
City did not have to show the business necessity of either the test or 
certification, would the Title VII have required the City to show the 
business necessity of the overall selection process (i.e., test + 
certification combined)?  That issue would have been worthy of Supreme 
Court clarification, but I guess we'll have to wait for another case to 
get the answer to that one.

Another issue is whether the Supreme Court has now established the "80% 
Rule" as a firm 80% standard.  If the selection rate of one group is 85% 
of the rate of another group, but the difference is statistically 
significant or very large numbers of people are selected, is there adverse 
impact?  We'll have to wait for for another case to get the answer to that 
one, too.

Lance Seberhagen, Ph.D.
Seberhagen & Associates
9021 Trailridge Ct
Vienna, VA 22182
Tel 703-790-0796
www.seberhagen.com<http://www.seberhagen.com>



Pluta, Paul wrote:

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


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Florida has a very broad public records law. As a result, any written 
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employees will be made available to the public and media, upon request, 
unless otherwise exempt. Under Florida law, email addresses are public 
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public records request, do not send electronic mail to this office. 
Instead, contact our office by phone or in writing.