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Terence S. Hannigan on Reverse Discrimination
On April 22, 2009, the U.S. Supreme Court heard arguments in a matter which will yield a decision that likely will have an immediate impact on promotional testing in the public sector and ramifications on hiring practices in general.
The case of Frank Ricci, et al. v. John DeStefano involved claims by seventeen white and one Hispanic candidates for line officer positions in the New Haven Connecticut Fire Department. After the plaintiffs in this suit successfully passed a test for promotion to lieutenant and captain officer position as required by state civil service provisions, the City’s civil service board refused to certify the promotions and directed that another test be held. The action of the City’s civil service board was based upon its finding that a good faith basis existed to be concerned that the test had a negative “disparate impact” on black firefighters who took the promotional exam. The highest scoring black on the captain’s test placed 16th; on the lieutenant’s exam, 14th. Relying upon a body of constitutional law which has invalidated testing which caused a “disparate impact”, the lower court sided with the City upholding its decision to invalidate the test and schedule a new test. The City argued that the entire test should be invalidated and the City could schedule a new test which might not have such a disparate racial impact. Supreme Court Justice Ruth Ginsberg, a noted liberal justice, embraced the City’s argument and likened the City’s decision to scrap the test to other cases where changes in tests were made by public safety departments with respect to physical fitness and physical strength requirements to accommodate more women applicants. (See, Pietras v. Farmingville Fire District, 180 F3d 468 (1999), (involving a physical fitness test for volunteer firefighters). Justice Antonin Scalia, known for having a conservative bent, challenged the City’s rationale that the decision to throw out the test was race neutral because all applicants would now have to take a new test. During the argument, Scalia stated “its neutral because you throw it out for losers as well as winners? That’s neutrality?” Chief Justice Roberts challenged the City’s intention to conduct another test which might result in a different ranking of candidates inquiring as to whether the City gets to conduct “. . . . do-overs until it comes out right?”
The thrust of the argument centered around the distinction between governmental entities making decisions that are race conscious (such as drafting election districts to promote increase minority participation) as opposed to making decisions which are race based. The City claimed that they acted in good faith and did not make a race based decision in invalidating the test. The disenfranchised officer candidates argued that the City’s actions were solely race based.
The Achilles heel in the City’s argument is that they are claiming that their action in rejecting the test results was made in “good faith” to prevent the City from being sued by the minority candidates. The City could have avoided having to solely rely upon the good faith “argument” if they had a test validation study performed in accordance with EEOC guidelines in advance of administering the test to determine that the materials on which the candidates were being tested were sufficiently related to the positions for which the candidates were testing. Validation of the test by the testing company was offered to the City, but the City chose not to have it done. If a validation study had been performed before the test was administered, the study would have negated a presumption that the test was biased after the results of the test had been determined. Specifically, in New Haven if a validation study had been done and the City made the promotions pursuant to the test scores, a lawsuit brought by the minority candidates who scored below the promotional grade would not have carried with it the presumption that the selection procedure had a “disparate impact”.
A validation study of the exam prior to the test being administered would avoid the “Catch-22" situation New Haven found itself in when the results of the testing were released. Conversely, the City argued that they believed that the absence of qualified black candidates established a presumption of disparative impact and that the City had done nothing and had no proof to invalidate that presumption. However, It was reported that the test given by the City of New Haven was created following significant research and evaluation by an outside firm hired for creating the test. It was alleged that the testing firm focused on creating an examination that tested essential job skills for promotion. However, there was no evidence in the court record that avoiding racial bias was ever considered in the development of the exam. It was argued that had there been evidence that consideration of other methods of testing had been considered and documented, that the integrity of the test would be less likely to be challenged. For example, the City’s argument for invalidating the test suggested that minority candidates statistically do not perform as well on written exams as on oral exams. The City noted that this exam was 60% written and 40% oral while other comparable exams placed a stronger emphasis on the oral component of the test. It was suggested that it would have been permissible to choose promotion selection procedures which were likely to have a less adverse effect on minorities giving deference to “racial consideration” (e.g. increase the oral portion of the exam), but not designed to negatively impact the successful test takers in a manner that was “racially based.”
If the Supreme Court holds in favor of the candidates who were denied promotions it will likely be based on the City’s action in scrapping the test after the score showed racial disparity (and a racially based motive) and not because the City was taking proactive measures to promote a more diverse workforce (a racially conscious motive). Justice Anthony Kennedy, likely to be the swing vote in this case noted in during the course of the oral argument that the City “. . . . looked at the results, and they classified the successful and unsuccessful applicants by race.” He indicated that this type of matter-of-fact determination made it difficult for him to accept the City’s argument that its decision was not discrimination based on race. As Judge José Cabranes stated in his dissenting opinion from the Second Circuit Court of Appeals which reviewed the case before it progressed to the Supreme Court, this case “at its core . . . . presents a straight-forward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race neutrality, on the ground that the results of the examination yield too many qualified applicants of one race and not enough of another?” It may well be that the opinion of the Supreme Court answers the quota once and for all.
