Have you ever felt like things just won’t turn out right, no matter what you do? The city of New Haven, Conn., must think so.
Several years ago, the city went to extraordinary lengths to ensure that its promotional process for lieutenants and captains would withstand legal challenge. It spent $100,000 to have an outside consulting organization (Industrial/Organizational Solutions in Westchester, Ill.) design the necessary examinations. IOS performed job analyses; interviewed incumbent captains, lieutenants and their supervisors; and rode with and observed other on-duty officers.
Using information from these interviews and ride-alongs, IOS wrote job-analysis questionnaires and administered them to most of the incumbent battalion chiefs, captains and lieutenants in the department. At every stage of the job analyses, IOS, by deliberate choice, oversampled minority firefighters to ensure that the results would not unintentionally favor white candidates. The written and oral examinations it developed were administered in 2003.
Seventy-seven candidates competed on the lieutenant examination for eight openings — 43 whites, 19 blacks, and 15 Hispanics. Of those, 34 candidates passed — 25 whites, six blacks and three Hispanics. Under Civil Service Board rules, the New Haven Civil Service Board was required to certify a ranked list of successful applicants. Pursuant to the city’s charter, the department, under what is known as the “rule of three,” was then required to fill each vacancy by choosing one candidate from the top three scorers on the list. Applying the rule of three, this meant that the top 10 candidates were eligible for immediate promotion. All 10 were white. Since the list remained valid for two years, subsequent vacancies would have allowed at least three black candidates to be considered for promotion.
The situation was similar with the captain examination. Forty-one candidates competed for seven positions — 25 whites, eight blacks and eight Hispanics. Of those, 22 candidates passed — 16 whites, three blacks and three Hispanics. This meant that under the rule of three, nine candidates were eligible for immediate promotion — seven whites and two Hispanics, but no blacks. At this time, New Haven’s population was nearly 40% black and more than 20% Hispanic.
Challenges to the promotion process quickly arose and the board had to decide whether it would certify the examination results. It was concerned with Title VII of the Civil Rights Act of 1964, which prohibits intentional acts of employment discrimination based on race, among other things. Such behavior is called “disparate treatment.” However, the act also prohibits policies or practices that are not intended to discriminate, but in fact have a disproportionately adverse effect on minorities. This is known as “disparate impact.”
The board’s dilemma was further compounded by the 80% standard used by the Equal Employment Opportunity Commission (EEOC) to determine disparate impact. This “rule of thumb” says that a selection rate of less than 80% of the rate for the group with the highest percentage of successful candidates generally will be regarded as evidence of adverse impact. In this case, for example, since 58.1% of all white candidates passed the lieutenant exam, the black and Hispanic pass rate would have to be at least 46.5% — 58.1% x 0.8 — to meet the standard. Unfortunately, only 31.6% of the black candidates and 20% of the Hispanic candidates were successful.
The situation was the same on the captain exam, where there was a pass rate of 64% for white candidates, but only 37.5% for both black and Hispanic candidates. Obviously, the examinations did not meet the 80% standard.
This left the board with two choices, both unsatisfactory. It could certify the examinations, which would exclude nearly every black and Hispanic candidate from immediate promotion and appear to violate the disparate impact prohibition of Title VII. Alternatively, it could refuse to certify the examinations, which would disadvantage the successful candidates and arguably violate the disparate treatment provision of Title VII. In the end, the board did not certify the examinations. Thereafter, 17 white firefighters and one Hispanic firefighter, all having passed the examinations but having been denied a chance at promotion, commenced suit. Ultimately, the case of Ricci v. DeStefano, 129 S.Ct. 2658 (2009), made its way to the U.S. Supreme Court.
The court said that under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe that it will be subject to disparate impact liability if it fails to take the race-conscious discriminatory action. In other words, before the city could refuse to certify the examinations, it needed a strong basis in evidence to believe that certification would violate the disparate impact prohibitions.
The court concluded that the city lacked this strong basis in evidence. In fact, it held that there was no evidence — let alone the required strong basis in evidence — that the tests were flawed. In effect, it seemed as though the city was penalized for doing such a good job of designing the tests.
Further, the court said that fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Ultimately, it ruled that the city should have certified the examination results and, in an unusual move, reversed the lower court judgment instead of vacating it, thus preventing the city from trying to show that it met the “strong basis in evidence” standard. Thus, the Court held that the promotions should have proceeded as indicated by the testing process, regardless of its disparate impact on the affected minorities.
The case then went back to the district court for determination of back pay, damages and legal fees due to the successful candidates. Shortly before trial last year, the city settled the case, agreeing to pay about $2 million to the firefighters and an additional $3 million toward their costs and fees. The candidates also received about three years of pension credit.
One might hope that this would have spelled an end to the story, but it was not to be. In the meantime, Michael Briscoe, one of the unsuccessful candidates, sued the city, arguing that he was the victim of disparate impact because of the way that the testing procedure weighted oral and written portions of the test. The city argued that the Supreme Court in Ricci already had ordered it to certify the exam, so it would be unfair for the city to then be exposed to a disparate impact claim from the unsuccessful candidates after following the high court’s ruling.
In August 2011 in Briscoe v. City of New Haven, 10-1975-cv, (2011), the U.S. Court of Appeals, Second Circuit, held that Briscoe could indeed proceed with his suit against the city. While sympathetic, it said that the city could have avoided this situation by making the unsuccessful candidates parties to the Ricci suit, thus binding them with its ruling. However, since they were not joined, Briscoe was entitled to his day in court. And so, nine years after the tests were given, the saga continues.
Some of the lessons that can be learned from the New Haven situation:
- Promotional examinations cannot be disregarded just because they don’t meet the EEOC 80% standard.
- Well-designed examinations are essential. Document their preparation and administration.
- Don’t be afraid to certify the results of good examinations.
- There will be times when no answer seems to be the right one, and litigation will result. However, the fear of litigation alone cannot justify reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.
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