Ricci and Briscoe as Disparate Impact Cases

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11 Responses

  1. AF says:

    “In sum, the Court pretty much applied the prevailing authority from the lower courts regarding job-relatedness, business necessity and available alternatives in deciding that the City would have won, not lost, a disparate impact challenge if it had used the test scores for promotion.”

    I disagree. The controlling case in the Second Circuit is Guardians Ass’n v. Civil Serv. Comm’n of New York, 630 F.2d 79, 82 (2d Cir.1980), which was recently reaffirmed by Gulino v. New York State Education Department, 460 F3d 361 (2d Cir. 2006). http://openjurist.org/460/f3d/361/gulino-v-new-york-state-education-department-03-9062-cv

    Guardians laid out a five-part test for use in analyzing the content validity of an employment test:

    (1) [T]he test-makers must have conducted a suitable job analysis[;] (2) they must have used reasonable competence in constructing the test itself[;] (3) the content of the test must be related to the content of the job . . . [;] (4) the content of the test must be representative of the content of the job[; and] [there must] be (5) a scoring system that usefully selects from among the applicants those who can better perform the job.

    The New Haven test would have had un uphill battle on requirement (4) and likely would have failed requirement (5) of Guardians.

  2. Michael Zimmer says:

    To AF:

    I agree with your statement of the law. The acceptance of content validation — the test is valid because the expert says it asks about the job — makes the law weak.

    The Court was not impressed enough with the statements of some of the testtakers that some of the questions did not reflect elements of the lieutenant and captain jobs to send anything back for trial. Maybe the point should be that by doing this the Court weakened the law on testing even further than it already was.

  3. AF says:

    I’m not sure if I made my point clearly. My point was that the Court’s analysis of New Haven’s disparate impact liability was NOT consistent with existing law, at least in the Second Circuit. In other words, it’s not existing law that is weak, it’s the Court’s understanding of existing law that is weak.

    Under Guardians, it is NOT enough for the defendant to prove that they “spent some real money constructing and administering the tests and the test questions asked about the job.” In addition to asking about the job, the questions have to be *representative* of the job, and, most importantly, the scoring system has to be valid.

    Defendants can fail to meet these standards even after they “spent some real money” on the tests. In the Gulino case cited above, the City of New York’s teacher certification test was (essentially) found to be invalid notwithstanding the fact that it was designed at great expense by NES, one of the nation’s leading testmakers.

    In the New Haven case, the highest scorers on the test were required to be promoted. This was based purely on civil service law, not on any analysis of the validity of the test results. Irrespective of whether the test was job related, that scoring system would have been highly suspect under Guardians.

  4. RJ says:

    Zimmer is wrong, wrong, wrong. The Ricci majority correctly interpreted the clear text of Title VII’s section “k” (its disparate impact provision)to impose liability on an employer for going ahead with a selection procedure that has disparate impact ONLY if there was a strong basis in evidence that the selection device was not job-related OR a demonstration that the employer was presented with an equally valid alternative which it REFUSED to adopt. Neither of these showings were made in Ricci and thus, as a matter of law, the city was held obligated to honor the test results in accordance with local law and civil service rules. In other words, the employer’s duty and statutory obligation is fixed in time, as it must be, consistent with the text of (k) and common sense. New Haven cannot be held liable for disparate impact in connection with these exams because, as a matter of law, it did not have strong evidence of job irrelevance nor did it “refuse to adopt” a legally defined equally valid alternative, as noted by the Ricci majority. One cannot seek to impose (k) liability any time in the future as Zimmer suggests, as it would throw into chaos an already- concluded selection procedure that was held, by the Supreme Court, to be lawful. Otherwise, a city is truly caught betwixt and between and can never safely fill vacancies, nor can those hired or promoted ever have repose in their jobs. The Supreme Court issued a rendition for judgment here. It appears fanciful at best for Zimmer to conclude that others may now make another stab at attempting to meet the statutory requirements years later. Zimmer essentially suggests an after-acquired-evidence approach to (k) liability which would impose retroactive Title VII liability on an employer that has yet to refuse to adopt anything. That is contrary to the clear text of the statute and to established liability jurisprudence. And Zimmer’s suggestion that a remedy for the Ricci plaintiffs and remedies for the newly arrived minority claimants can co-exist is ludicrous. Both new actions seek to install minorities into the same limited vacancies that are to be occupied, per the Supreme Court’s opinion, by the Ricci plaintiffs. Zimmer obviously knows little about these rather elementary practicalities.

  5. Michael Zimmer says:

    To RJ: What is your point? :)

    Seriously, 703(k) prohibits the use of employment practices that cause a disparate impact if they are not justified. Before Ricci, there was no obligation to use any employment practice. After Ricci, the obligation does not come from 703(k) but from 703(a)’s basic ban on disparate treatment discrimination. Now, with this new approach, you are right that the City is liable to the Ricci plaintiffs, but liable for disparate treatment discrimination, not disparate impact discrimination.

    There is no after-acquired evidence issue here. The new plaintiffs will not have anything adverse happen to them until the City starts using the test scores for promotion. The use of the test scores for promotion is the trigger for their claims. With the City announcing that it will use the test scores, that is probably enough to support a finding in their favor on the “adverse employment action” element of a claim. In other words, these new claims might be a bit premature but definitely are not untimely for being too late.

    Just because the City failed to demonstrate that it had a strong basis in evidence that it would lose a disparate impact case does not mean that these plaintiffs, who were not party to the original action and who are now suing the City, cannot make out a disparate impact case. Briscoe’s focus is on an issue — the weighting formula of written and oral scores — that was only obliquely addressed in Ricci, which focused on the content validity of the written test.

    As for throwing the process into a jumble, the fact that the City may be obligated by state and local civil service laws or by collective bargaining agreements to use written tests and the results of the tests for promotions is no defense to a Title VII claim. And, I don’t see much support for your claim that these plaintiffs have any basis to replace the Ricci plaintiffs once they get promoted, even if that is what they want. As I recall, the only instance that I know of where an incumbent employee was ordered to be replaced by a successful discriminaiton plaintiff involved some very high level, executive job, something like the county executive of Westchester County.

  6. RJ says:

    Wrong again. First you mis-state Title VII as “prohibiting the use of employment practices that cause a disparate impact if they are not justified”. The statute says no such thing. Yours is a generalized characterization of the statute. If you are going to cite Title VII then quote accurately its actual text. As noted, its actual TEXT does not impose liability for disparate impact retroactively, a matter which even the DOJ conceded in another case in another district (involving a similar attempt by minorities to impose liability on the employer by “presenting” to the employer, for the FIRST time in court (after the selection process concluded) a supposed alternative as defined in (k) and otherwise attempting post hoc to demonstrate job irrelevance. And for you to say the Supreme Court only addressed these matters obliquely surely indicates that you are a partisan. Justice Kennedy clearly rejected the notion that the city could lawfully alter the scores, change the exam weights and so on – all such activity being explicitly banned by section (l). And where is your authority for saying that only high-level executive types are at risk of being ousted from their offices and that these firefighters are not – because of the nature of their job duties? Where are you getting that one from? These minority complainants had an opportunity to make the statutory showing in 2004, and in fact they engaged in concentrated efforts to make it, as the record bears out and as the majority and concurring opinions establish by their meticulous review of the hearing the city held and the evidence they adduced. All this is to say nothing of Justice Kennedy’s conclusion regarding what should happen if the city does face post-ruling complaints. Did that escape your attention?

  7. Edie says:

    Why is “AF” going on and on about the CA2’s old Guardians case. Ricci governs now.

  8. RJ says:

    “AF” doesn’t know what he’s talking about either. The Ricci exams were composed and conducted by the book. Everything AF cites from the “Guardians” case was in fact done in Ricci. That is why cities hire these professional testing firms. These firms exist (in fact they arose) because of disparate impact litigation by minorities. Exhaustive job analyses are done in the exam ramp ups, and careful checking of questions and answers from source materials and other protocols are now standard. No matter how job-related and legitimate an exam is, it is the case that a lawyer can always get a hired gun to “find something wrong”. Some of these testing guys are cannibals – they’ll criticize a competitor firm’s exam for profit, to make a name for themselves and get business in a fiercely competitive industry. Some testing consultants are themselves part of the liberal race preferences crowd and will skew their exams and scoring to favor minorities – they are the ones pushing the subjective forms of testing (like “assessment centers” and oral formats) which allow them to put a racial thumb on the scale and deliver the racial quotas that some cities want. They are derisively referred to in the testing industry as the “diversity dudes”. Everyone knows who they are and they will get ripped to shreds on cross by any skilled trial lawyer who knows their backgrounds. The firm used in the Ricci case would have none of that. They composed and delivered exams that were race-neutral, legit and they defended them to the ground against slanderous attacks. Note how Justice Alito picked up on the fact that the city’s expert was a competitor of the firm that composed the tests and he drew laughter from the audience at the oral argument by characterizing this “expert’s” critism of the test as amounting to “I create better tests – here’s my business card.” As for the “evidence” from firefighters claiming some of the questions were not relevant to the job, PUHLEESE. If you knew the actual evidence in this case, you would learn that two black firefighters complained about TWO questions (out of 200). Neither complained about them to the test administrators despite being afforded a timely procedure for challenging questions. These same candidates thought the tests were fair and job-related, until they learned they has scored poorly. Months later, (and after their memories faded to the point where they could not even correctly recite the questions or the choice of answers), they made incoherent complaints about the two questions before the city’s civil service board. A truly fascinating aspect of the Ricci opinions was Justice Ginsburg’s dissent which makes much ado about this so-called “evidence” of faulty questions when there was NOTHING whatsoever in the record to support that, save the two comments from the two black firefighters. And, neither of their complaints was ever substantiated. In fact, the evidence suggests the city was aware the two complaints were bogus. The city’s new counsel, in their merits brief and at oral argument, grasped at these straws and floated the two black firefighters’ assertions of flawed questions before the SC but, interestingly, did NOT go further and actually claim (much less demonstrate) that they had any merit. Why not? Because it was BULLSHIT. The two firefighters were wrong – (which explains why they didn’t score well on the test). Moreover, even if you discounted the two questions, the exam results and disparate impact would be the same anyway. So here you have a dissent that repeatedly emphasizes the most incompetent, discredited and utterly meaningless evidence ever to go before that court. Amazing.

  9. RJ says:

    On Zimmer’s claim of timeliness of the new suits, once again he obviously hasn’t read the suits and is wrong again. These latest actions are broad-based attacks on the city’s long-existing exam formats (60-40 weights to the written and oral components respectively). Numerous Black lieutenants seeking promotion to Captain were in fact promoted to Lieutenant based on exams with that very format and weighing system. They didn’t complain about the format when it resulted in their promotions to Lt did they?? Of course not. If in fact they are attacking the entire system the city uses to administer exams, they could have and should have done that at the time the 2003 exam was announced (with the intended weights and format well known to them, as always). Instead, they were fine with it and, only upon being disappointed in their scores, did they start complaining, the very kind of after-the-fact demand for race-based treatment that Justice Kennedy held impermissible under Title VII. For the many ignorant about New Haven’s (and other cities’)history, use of strictly non-objective (that is, subjective) “oral” exams resulted in scandal and accusations of race-based score rigging, and any attempt by a judge to reintroduce that kind of corruption into New Haven’s civil service will undoubtedly be fought tooth and nail all the way back to the Supreme Court.

  10. AF says:

    “Why is “AF” going on and on about the CA2’s old Guardians case. Ricci governs now.”

    Ricci doesn’t necessarily govern disparate impact suits. Ricci wasn’t a disparate impact suit, it was a disparate treatment suit.

    My main point, though, was that Ricci was based on a serious misunderstanding of then-existing disparate impact law.

  11. RJ says:

    AF – to say Ricci was a “disparate treatment” and not a “disparate impact” case is way too creative. It was both. Even if you are correct that the Ricci plaintiffs sued only on disparate treatment grounds, the fact is that the City DEFENDED the suit on disparate impact grounds. The city took the challenged action on disparate impact grounds. The minorities who urged the city to discard the results made their case for it on disparate impact grounds. The city’s corporation counsel advised the civil service board to reject the candidates based on disparate impact law, and so on and so on. The city’s amici defended on disparate impact grounds. So did all the city’s amici, including the DOJ. So did Justice Ginsburg, whose entire dissent was a disagreement with the majority’s view of the interplay of the two doctrines. Thus, as the opinions themselves indicate at the outset, the majority justices saw their task as resolving the tension between the two doctrines (or the war between them, as Justice Scalia termed it). I see you claim the majority had a “serious” misunderstanding of existing disparate impact law. The law according to who? You? The Second Circuit? (with its reversal rate?) Disparate impact law is what the Supreme Court says it is, not what a lower court, and certainly not a what pundit or law profesor says it is or prefers it to be. I for one hope the day comes, as Justice Scalia predicts it will, when the Court takes up the constitutionality of Title VII’s disparate impact provision and invalidates it. Given commentary of the sort offered by Professor Zimmer, which encourages more disparate impact litigation and the obnoxious racial classifications it requires, public employers will continue to be vexed, and public agencies crippled, by endless litigation by minorities (and corresponding claims by non-minorities who are aggressively fighting back). It’s a wonder how these guys are able to put out fires and rescue people when their lives are consumed by this nonsense which tears them apart along racial lines and turns the fire service (and police departments) into racial war zones. Disparate impact litigation has got to go. It’s become nothing but a perceived jobs welfare program – for too many a sacred cow they must relentlessly try to salvage, especially those who cannot or will not earn their way by education and hard work. It’s embedded in the culture.