Howard Miller Dan Levin College of Business Minnesota State University, Mankato

1. Much ado about the Supreme Court’s View: Civil Rights Act compliance advice to employers in light of the Ricci versus DeStefano (2009) U.S. Supreme Court Decision Howard Miller Dan LevinCollege of BusinessMinnesota State University, Mankato

2. What is Ricci v DeStefano (2009) about? • Employment discrimination under CRA 1964 • White firefighters sued City of New Haven for “disparate treatment” (intentional) discrimination • New Haven Civil Service Board set aside promotion test results because blacks would have been promoted at much lower rate than whites

3. Why was the Ricci v DeStefano (2009) decision controversial for employers? • Employers, faced with “disparate impact” evidence from using professional selection tests, have set aside the test results, seeking better alternatives • SCOTUS – reversing lower courts - declared such action “disparate treatment” discrimination when the NH-CSB set aside firefighter promotion test results, unless a “strong evidentiary standard that illegal adverse impact liability exists”

4. So ……? • Employers are “damned if they do, damned if they don’t” when using hiring tests • If there is disparate impact from using a test, the employer can be sued by group(s) passing at lower rates than the highest passing group • If the employer sets aside the test due to it’s disparate impact, the employer can be sued by the group that passed at the highest rate for disparate treatment discrimination

5. How do employers resolve the quandary? • Key question – is the selection test “valid” • i.e., do people who do better on the test do better on the job? • If so, then the test is valid and can be used (unless the plaintiff shows another valid test exists that produces less adverse impact) • If not, then junk the test, find or develop a valid test These are consistent with “Uniform Guideline (UGESP)” standards that have been in place since 1978

6. Did City of New Haven follow the UGESP? • Partly • They contracted with a professional test developer to produce written and oral tests, who followed the UGESP. The resulting tests were likely “content valid” under the UGESP evidence standards. • However, the City, when learning of disparate impact pass rates, chose to ignore the evidence that the testing program was job-related, consistent with business necessity. • Complication, key City administrators seemed intent on junking the test solely because not enough black candidates would be promoted

7. So the City’s error was …. • Failing to defend its valid testing program using evidence readily available in the face of disparate impact concerns • AND • Showing intent to manipulate the testing program to ensure that black candidates would get promoted

8. To avoid the New Haven mistake … • Develop valid hiring and promotion tests, following UGESP • If disparate impact results, use the test provisionally, while seeking valid alternatives that have less adverse impact • Do not set aside a test that results in disparate impact solely on statistical data showing that impact. Such data do not meet SCOTUS strict evidentiary standards about disparate impact liability

9. Mysteries remaining • What will the SCOTUS accept as meeting the strict evidentiary standard so that an employer may set aside a test creating disparate impact? • Will improved educational equality eventually erase the performance gap often found between white and black candidates on screening tests for employment?

10. Conclusions • The City needlessly incurred the condemnation of the SCOTUS by setting aside a probably valid employment test • There is new confusion afoot concerning what meets the SCOTUS “strict evidentiary standard” • Employers can avoid that SCOTUS evidence quandary by following tried and true methods for employment test development, as described in the UGESP