Disparate Treatment Discrimination; Implications of the Strong Basis in Evidence Standard

Transcription

1 Disparate Treatment Discrimination; Implications of the Strong Basis in Evidence Standard Sonja Stanchina, IPMA-CP, Human Resources Officer II East Bay Regional Park District, Oakland, California INTRODUCTION One of the most significant public sector employment discrimination cases in recent years was decided by a split decision of the United States Supreme Court in June In Ricci v. DeStefano, Supreme Court Justices decided in favor of a group of White firefighters from New Haven, Connecticut who successfully sued their agency in what is being termed as a reverse discrimination victory. Through case study and analysis of the recent court decision, this paper will examine the claim of disparate treatment by a majority group and explore the subsequent implications of the strong basis of evidence standard, which was paramount in deciding the case. The resulting discoveries will provide public agencies with information to carefully consider when bargaining for promotional testing and selection instruments and procedures. DEFINITIONS Disparate treatment occurs where members of a race, sex, or ethnic group have been denied the same employment, promotion, membership, or other employment opportunities as have been available to other employees or applicants (DOL). Rule of three is a requirement that the individual selected for a civil service position must be among the three individuals with the highest scores. Strong basis in evidence is the standard used by the court system to support the conclusion that remedial action is necessary, such as demonstrated by past discrimination within the agency. Test validation is the procedure which establishes that a test is job-related and correlates to on-the-job performance. BACKGROUND During the fall of 2003, the City of New Haven, Connecticut began a promotional recruitment and selection process to fill eight Fire Lieutenant and seven Fire Captain vacant positions. The established hiring list would be in effect for two full years. After an extensive process of soliciting bids to contract out for the examination service, the city hired a consultant firm to develop and administer both the written and oral examinations. Under provision from the firefighters collective bargaining agreement, the multiple-choice written exam was weighted at

2 60 percent with the remaining 40 percent for the oral exam, for a 100 percent total overall score. Development of these testing instruments included interviews with New Haven incumbent lieutenants and captains; ride-alongs with various fire officers; job-analysis questionnaires; and other means to identify the essential tasks, knowledge, skills, and abilities of the two promotional classifications. At every stage of the process, the consultant over-sampled minority firefighters to ensure the results would not unintentionally favor White candidates. Additionally, the oral-examination panelists included three members on each panel: one White, one Black, and one Hispanic (66 percent of the panelists were minority). All of the panelists were from agencies outside of the state, were of superior rank to those being tested, and received several hours of training the day before on how to score the oral examination. City representatives reviewed and approved the qualifications of all oral-panel members per resumes submitted in advance, and there were third-party reviewers who scrutinized both examinations (written and oral) before implementation. The consultant went to great lengths to ensure construct validity; receiving a $100,000 fee to develop and administer the New Haven Fire Department promotional examinations. There were a total of 118 internal candidates who applied for these promotional opportunities. The examination results for each recruitment is as follows: FIRE LIEUTENANT FIRE CAPTAIN CANDIDATES TESTED PASSED CANDIDATES TESTED PASSED White (58%) White (64%) Black 19 6 (32%) Black 8 3 (38%) Hispanic 15 3 (20% Hispanic 8 3 (38%) TOTAL: (44%) TOTAL: (54%) Firefighter Frank Ricci, a White male, was an 11-year veteran of the New Haven Fire Department and said in a sworn statement that because he is dyslexic, the last time the city offered a promotional exam for lieutenant he gave up a second job, studied up to 13 hours a day, and paid an acquaintance $1,000 to read textbooks onto audiotapes for him (Liptak, 2009). He was not successful during that last examination, but was successful in this most recent examination of Mr. Ricci ranked number sixth among the 77 lieutenant candidates and according to the city charter s rule of three, because there were eight vacancies, he was guaranteed his long-awaited and what he believed to be his hard-earned promotion to lieutenant (Liptak, 2009). In fact, of all the eligible candidates to promote, all are White with the exception of one Hispanic, in a city where nearly 60 percent of the residents are Black and Latino (Guinier/Sturm, 2009). Upon receiving the exam results, the mayor, city representatives, and other local politicians were alarmed to see that none of the 27 Black candidates were eligible to promote into any of the 15 vacant positions and only one Hispanic was eligible. The city leadership discussed the results with the firefighters and the response was divided. Some firefighters threatened a discrimination lawsuit citing statistical racial disparity if the examination results were certified; 2

3 others threatened a lawsuit if the results were not certified. After more meetings and further discussions with the firefighters and others during public hearings, the city s Civil Service Board decided not to certify the promotional examination results and thereby discarded the eligibility list. The city says it was merely trying to comply with a federal law that views job requirements like promotional tests with great suspicion when they disproportionately disfavor minority applicants (Liptak, 2009). Consequently, no one was eligible to promote into the vacant positions. Not long thereafter, Ricci and nearly 20 other promotional candidates (all White except the one Hispanic) adversely impacted by the city s decision, sued Mayor John DeStefano and other city representatives for violation of the disparate treatment prohibition contained in Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the 14 th Amendment. The petitioners claimed the city s rationale for throwing out the test was illegitimate, denying them a chance for promotion due to the (white) color of their skin (Liptak, 2009). Another viewpoint contends that the city caved to political pressure (Fleming, 2009). The case first went to the district court which granted summary judgment in favor of the city. The Second Circuit Court of Appeals affirmed. The U.S. Supreme Court reversed the appellate court decision and ruled in favor of the petitioners, finding that the city engaged in disparate treatment discrimination by discarding the exam results, finding their decision was indeed based upon race when the law dictates race-neutral employment decisions. DISCUSSION Disparate Treatment According to federal law, disparate treatment discrimination is unlawful because it manifests in the unequal treatment of applicants or employees within protected classes, based upon nonjob-related factors. In this case, for fear of a lawsuit from the minority firefighters claiming disparate treatment for certifying the exam results, the city instead was the recipient of a lawsuit from the White firefighters claiming disparate treatment for not certifying the results. Henceforth, the majority group received the same legal protection traditionally afforded to members of minority groups and received the same rights as a protected class. The group of White firefighters claimed individual achievement and merit during test preparation as the explanation for why they outperformed the minority firefighters on the written exam. The minority group claimed it was not a matter of less initiative or ability; rather it was an issue of limited access to the study materials, outdated or non-applicable test content, and inappropriate heavy weighting of the multiple-choice written examination. The city of New Haven has had a history of discrimination as indicated in the opening paragraph of U.S. Supreme Court Justice Ruth Bader Ginsburg s dissent of Ricci v. DeStefano. She noted that in 1972 when Congress extended Title VII of the Civil Rights Act of 1964 to cover public employment, municipal fire departments across the country, including New Haven s, pervasively discriminated against minorities. (Underline added.) Even after the 1972 extension, in 1975 the city of New Haven settled a discrimination lawsuit and consequently initiated efforts to increase minority representation in the New Haven Fire Department. 3

4 In Ricci v. DeStefano, the firefighters union sided with the White firefighters and it was the union who negotiated the contractual mandate giving disproportionate weight to the multiple-choice written examination two decades ago when the leadership of the fire department was nearly all White (Guinier/Sturm, 2009). There was a significant cost to the examination study materials ($500) and the White candidates had an advantage since they had long-standing relationships with prior generations who were already in the fire department, family and friends, who could help them with the cost or loan them the materials. John Payton, president of the NAACP Legal Defense and Educational Fund, Inc., supported the city s decision to discard the test, citing the case must be understood against the backdrop of what he described as pervasive racial discrimination in firefighting and the pitfalls of thinking that a test can capture the qualities needed for leadership in life-or-death situations. This position is supported also by Donald Day of the International Association of Black Professional Firefighters as he stated, An individual s ability to answer a multiple-choice exam does nothing but measure their ability to read and retain. He added, Young Black and Latino kids have every right to see Black and Latino officers on those fire trucks riding through their community. (Liptak, 2009) The city appeared to be a deer caught in the middle of the road, not knowing which way to jump. With either decision, their choices included jumping off a cliff. In hindsight, certainly, the city should have certified the results and as to be discussed further, should have promoted the eligible candidates without regard to race. This determination is based chiefly on the strong basis in evidence standard. Strong Basis in Evidence This case was a difficult one in many ways, dividing people at every step of the six-year battle. Foremost, firefighters from both sides of the dispute held strong, passionate, and opposite beliefs. Secondly, educated city leaders and representatives, including those with juris doctorate degrees, struggled with reaching agreement on the correct or legal course of action. Next, two lower courts were in agreement, yet the highest court in our land overturned their decisions. Even within the great Supreme Court, the decision was split 5-4, and with its incoming Justice (Sotomayor) dissenting from the decision of the Chief Justice (Roberts) by way of her decision in a lower court ruling. Finally and currently, the court of public opinion is still in disagreement with the outcome. From the published Opinion of the Court, Justice Kennedy points to the strong basis in evidence standard as the deciding factor. U.S. Supreme Court Justice Kennedy opined in Ricci v. DeStefano, We conclude that race-based action like the City s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard. Apparently, the outcome would have been different had the city established the strong basis of evidence standard, or irrefutable evidence to support their action such as proof that: (1) the 4

5 exams were not job-related or consistent with business necessity; (2) there were better alternative testing instruments with less of an adverse impact; or (3) there was past discrimination that required corrective measures. The mere threat of being sued by the minority firefighters was insufficient. The defendants needed to have established one or more of the three aforementioned as facts to support their action of discarding the results. Fearing lawsuit from one group does not permit unlawful discrimination of another group. Further and ironically, the strong basis in evidence standard was upheld in a different area, one that was detrimental to the city s position. According to Liebert Cassidy Whitmore, The court concluded that the City met the strong basis in evidence standard in light of the comprehensive process it undertook to validate the testing procedure, as well as the absence of evidence of an equally valid alternative testing process having a less discriminatory impact. Therefore, because the consultant conducted a thorough job in producing examinations free from apparent racial bias and the city consequently approved the testing design and administration, the strong basis in evidence was established in making the decision to move forward with these examination instruments. The city did not have a valid reason to discard the examination results. The Supreme Court noted that the two lower courts ignored this principle (strong basis in evidence), focusing instead on the city s motivation that is, its objective of avoiding disparate impact liability (Fleming, 2009). Conversely, though the highest court in our land found that the examination was free from apparent racial bias and that the city did not have a valid reason to discard the examination results, there was significant evidence presented at the trial in support of a multiple-choice questionnaire being unable to determine a fire officer s command presence, leadership, interpersonal, management, and tactical skills. Dr. Christopher Hornick, who is an industrial/organizational psychology consultant with 25 years experience with police and firefighting testing, testified at the trial, I ve spoken to at least 10,000, maybe 15,000 firefighters in group settings in my consulting practice and I have never one time ever had anyone in the fire service say to me, Well, the person who answers-gets the highest score on a written job knowledge, multiple-guess test makes the best company officer. (Ginsburg, 2009) New Haven could have administered a pass/fail written examination, thereby establishing a minimum competency level. Thereafter, the oral examination could have weighted at 100 percent, permitting more focus on leadership and interpersonal skills for ranking purposes and mitigating disparate impact. As a final discussion point, though implied it is important to note that certain government actions to remedy past racial discrimination is constitutional only where there is a strong basis in evidence that the remedial action is necessary, per the Ricci v. DeStefano Syllabus. CONCLUSION According to the Harvard Law and Policy Review, this decision attracted both substantial criticism and praise and the case is guaranteed to be the subject of ongoing critical commentary with future scholarly discussions inevitably focusing on how the Court either departed from or remained true to its past precedents in employment discrimination cases under Title VII. Justice Ginsburg leads that criticism of the court decision by noting in her dissent, The Court s order and opinion, I anticipate, will not have staying power. With this in 5

6 mind and in consideration of the discussion points, this case study is rich with learning opportunities right now, for those who have the ultimate responsibility for their public agency s recruitment and selection functions. Public agency decision-makers are urged to give serious consideration to each of the following recommendations in order to respect and value diversity in hiring and promotional practices, while also complying with this most recent case law on the issue of disparate treatment discrimination: 1. Every effort must be made to ensure that all testing instruments and practices have been designed according to the specific (and certainly current) job-related criteria and have been validated to correlate to on-thejob performance. Per CPS Human Resource Services, It is incumbent upon the testing process and the testing professional who design and administer the test instruments that comprise the testing process to ensure that the appropriate job-related qualifications (i.e., those that are required for successful job performance upon entry to the job) are being measured in an accurate and fair manner, and that resulting score decisions are based upon a defensible rationale. 2. To the extent possible, agencies should strive to include diversity representation and expertise within each step of the process of designing and selecting testing instruments and practices. The Harvard Law and Policy Review states, Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race. 3. A statistical demonstration of disparate impact alone is insufficient grounds to discard test results; the employer must be able to demonstrate a strong basis in evidence standard as their justified cause for action. According to Fleming, The Supreme Court reversed the decision (of the lower courts), finding that New Haven violated Title VII s prohibition on intentional disparate treatment discrimination when it threw out the test results on the basis of nothing more than the race of the successful applicants. The decision was, therefore, racebased and, without some other justification, violated Title VII s prohibition on an employer taking action because of race. (Underline added.) 4. Collective bargaining agreements containing promotional and selection provisions should be carefully reviewed and revised through the meet and confer process in order to ensure current and proper job-related weighting balances of the various testing components. 6

7 Justice Ginsburg noted in her dissent, Tests drawn from national textbooks often do not match a city s local firefighting needs. Most American fire departments have abandoned such tests or limited the multiple-choice format to 30 percent or less of an applicant s score. In New Haven, the test still accounted for 60 percent of the score. She also noted that most other jurisdictions have moved away from pencil and paper examinations because real-time simulations provided a better sense of how candidates would actually perform under real-life conditions. 5. Public agency employers should consider issues of equal access to study materials for their promotional opportunities with the intent to reduce or eliminate barriers of availability and cost. According to Justice Ginsburg s dissent, some individuals (the majority of the White candidates implied), had the necessary books even before the syllabus was issued. Others (the majority of the minority candidates implied) had to invest substantial sums to purchase the materials and wait a month and a half for some of the books because they were on back-order. These disparities, it was suggested, fell at least in part along racial lines. While many Caucasian applicants could obtain materials and assistance from relatives in the fire service, the overwhelming majority of minority applicants were first generation firefighters without such support networks. Perhaps most central to this case was the issue of weighting the written exam at 60 percent of the total score. It was testified by the consultant who developed the examinations that the city of New Haven never asked whether alternative methods might better measure the qualities of a successful fire officer, including leadership skills and command presence. This was the foundation of the subsequent course of events. The consultant merely proceeded per the directive of creating the examinations based entirely upon that decades-old bargained provision. This, I therefore suggest, was the biggest mistake and most important lesson of all to be learned from this case for all public sector recruitment professionals. In conclusion, there is a single point of consensus from Ricci v. DeStefano in which the nation s legal minds seem to agree; the developing case law has not ended, nor has the discussion. Sonja Stanchina, IPMA-CP Human Resources Officer II East Bay Regional Park District 2950 Peralta Oaks Court Oakland, CA Phone (510) Fax (510) sstanchina@ebparks.org 7

8 REFERENCES CPS Human Resource Services (Fall/Winter 2007). Test Catalog, page 2 Department of Labor, Fleming, R. (September 1, 2009). Financial and Economic Crisis Law Firms Strong Basis In Evidence Supreme Court Establishes New Standard for Discard of Administered Promotional Examinations, The Metropolitan Corporate Council Guinier, L., Sturm, S. (July 10, 2009). Trial by Firefighters. New York Times Liebert Cassidy Whitmore (August 2009). Race Discrimination. Client Update, page 1 Liptak, A. (April 9, 2009). Justices to Hear White Firefighters Bias Claims. New York Times Szanyi, J., Guttmannova, K. (February 4, 2010). Presenting a Strong Basis in Evidence : How Lawyers Should Use Statistics to Shape the Impact of Ricci v. DeStefano on Title VII Litigation. Harvard Law and Policy Review Online 557 U.S. Ricci v. DeStefano (2009). Opinion of the Court, Ginsburg.J., dissenting, Syllabus 8