January 6, 2010 14:29 Age: 4 yrs

FACULTY VOICES: Title VII Landscape after Ricci v. DeStefano

By: Charles A. Shanor, professor of law

Ricci says that when diversity desires conflict with nondiscrimination norms, diversity must yield under Title VII.

Often, employers seek competent and diverse employees. But, race-blind selection devices like scored tests may shortchange diversity aspirations and diversity-regarding devices may undermine competence goals.
In Ricci v. DeStefano, the U.S. Supreme Court held that Title VII requires an employer to have a “strong basis in evidence” that a selection device was not job-related before abandoning it. Otherwise, the employer must stick with the test despite diversity desires.

After Ricci, employers having this problem must address two questions. Is my decision because of race? And, do I have a “strong basis in evidence” for thinking the test is not job-related?

Race or not?

Abandoning test results for nonracial reasons after Ricci is permissible, but it is not clear what reasons are nonracial. An employer no longer needing to fill jobs who decides against using a test acts nonracially. But, one with unchanged business needs who learns the promotion pool demographics is more problematic.
After Ricci, arguing ethnic diversity was the reason for scuttling a test will not suffice. Post-Ricci employers must show that “racial outcomes were far from our minds,” even if they have previously published commitments to diversity and affirmative action.

Consider a “we want to avoid Title VII liability” rather than a “we need diversity” approach by an employer. A professional opinion before abandoning test results that finds “a substantial likelihood of a disparate impact challenge if the results are implemented” is not enough after Ricci.

The employer needs expert guidance that the test given, usually contrary to pretesting representations of the test developer, was not job-related. It will be expensive and hard to obtain.

Companies will not wish to broadcast test results before carefully assessing the test’s validity. In Ricci, this occurred with the posting of exam results, but most private employers, even before Ricci would not have posted such results. Notice that “due to changes in our business needs, all prior applicants who wish to be further considered should reapply” is a wiser approach. No plaintiffs, no lawsuit.

Strong basis in evidence?

The Ricci dissenters wrote the “strong basis in evidence” test was novel and insufficiently respectful of affirmative action motivations. After Ricci, one might ask where this standard lies along the better-known “preponderance of the evidence” and “clear and convincing evidence” continuum. I suspect it is closer to the latter.

Ricci indicates that employers must assess a test’s validity evenhandedly before abandoning it, but experts and lawyers may disagree as to whether particular evidence shows job-relatedness. Experts use different methodologies and may have hidden agendas (like the one in Ricci whose testimony may have been a thinly veiled plug for his methodology).

Procedurally, there may be lawyers who advise corporations to suspend action based on a test and file a declaratory judgment action to get a judicial determination whether invalidity has a “strong basis in evidence.” If the judge says yes, the test is abandoned; if the judge says no, the test is used.

The bottom line?

An employer with unchanged business needs (like New Haven needing fire officers) and race (diversity) factors present in its decisional process, may be more likely to face Title VII liability if it abandons rather than retains a test.

Ricci says that when diversity desires conflict with nondiscrimination norms, diversity must yield under Title VII. Some day, when employment affirmative action is tested under the Constitution’s Equal Protection Clause, it will likely be found wanting.

Charles A. Shanor, professor of law, teaches employment discrimination and constitutional law, served as general counsel of the Equal Employment Opportunity Commission and once represented police promotional candidates disappointed by a city’s decision to abandon the results of an exam.

List: <- Back to: News Releases