Academic journal article Labor Law Journal

Ricci V. Destefano: New Opportunities for Employers to Correct Disparate Impact Using Croson Studies (Part One of a Two Part Series)

Academic journal article Labor Law Journal

Ricci V. Destefano: New Opportunities for Employers to Correct Disparate Impact Using Croson Studies (Part One of a Two Part Series)

Article excerpt

I. Introduction

On June 29, 2009, the United States Supreme Court handed down the first Title VII ruling answering the difficult question: "Under what circumstances can an employer subject to Title VII implement otherwise prohibited disparate-treatment discrimination to avoid disparate impact liability?" Ricci v. DeStefano1 answered this difficult question and, in so doing, presented some additional layers to the Title VII framework relevant to both disparate impact and disparate treatment cases that must be applied in the future by Federal courts. This article discusses these implications. The Supreme Court in Ricci adopted a "strong-basis-in-evidence standard" as a matter of statutory construction for courts to use as a means of resolving conflicts between Title VII's disparate-treatment and disparate-impact provisions - "allowing violations of one in the name of compliance with the other only in certain, narrow circumstances."2 This article introduces the concept of a "Croson Study,"3 for 20 years limited in its application to contracting issues in the public sector, for employment issues to assist employers meet the Ricci-set "strong-basis-in-evidence standard." The second part of this article, appearing in the next issue, will provide some specific applications of Croson Studies.

II. Case Background

Ricci v. DeStefano involved the City of New Haven's firefighter promotional practices. The foundation for the City's selection procedure was an agreement with its fire fighters' union that only a written test and an oral interview would be used as the selection devices. The final ranking of candidates was weighted 60 percent on the written test and 40 percent on the oral interview. Although that weighting came about as a result of negotiations with the union, it was apparently not based on job analysis research. Candidates were required to be placed on the eligibility list in rank order of their scores, even though the measurement properties of the tests used could not distinguish between candidates in such a finite manner. The City's charter requires promoting only from the highest scoring three candidates, called the "Rule of Three," even though there could be other candidates just as qualified, but a few decimal points away in score.

To develop the tests, New Haven hired an outside, Chicago-based, consulting firm that specialized in development of employment screening procedures like the written and oral tests desired by the City of New Haven. The City agreed to pay their new vendor $100,000 for the project, but apparently specified that a written test and oral interview would be developed rather than allowing the consultant to identify the most appropriate selection devices. The testing consultants "began the test-design process by performing job analyses to identify the tasks, knowledge, skills, and abilities that are essential for the Lieutenant and Captain positions." (Ricci, p. 4) They interviewed incumbent Captains and Lieutenants and their supervisors. "They rode with and observed other on-duty officers. Using information from those interviews and ride-alongs, [the consultants] wrote job-analysis questionnaires and administered them to most of the incumbent battalion chiefs, Captains, and Lieutenants in the Department." At each stage of the job analyses the consultant "oversampled minority firefighters to ensure that the results. . .would not unintentionally favor white candidates."

Then the consulting firm developed written examinations to measure the candidates' jobrelated knowledge. For each test, a list was prepared consisting of training manuals, Department procedures, and other materials to be used as resources for the test questions. The list of sources was approved by the Fire Department's executives. Then, using only material from the approved sources, the consultants developed multiple-choice test questions for each position. Each test had 100 questions and, according to Civil Service Bureau rules, was written "below a 10th grade reading level. …

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