No Good Deed Goes unpunished

1. No Good Deed Goes unpunished Supreme Ct to employers on testing, put up or shut up! Ricci v DeStefano

2. Other Possible Titles • Prisoner’s dilemma, Title VII style

3. Other Possible Titles • Prisoner’s dilemma, Title VII style • Don’t think great thoughts, just read the rule

4. Other Possible Titles • Prisoner’s dilemma, Title VII style • Don’t think great thoughts, just read the rule • Bad facts make bad law?

5. Ricci v DeStefano • Facts • Firefighters promotion test is the issue • The City of New Haven CT hired Industrial/ Organizational Solutions (IOS) to design a test for promotion to Lieutenant and Captain. • IOS hand not done this type of test before for the City but had done so for other similarly sized cities. The process was described as follows: • IOS did ride-a-longs and interviews with current Battalion Chiefs, Captains and Lieutenants determine the basic information regarding the Structure of the Department, the tasks required of individuals at each rank and the materials the department generally uses for training. • They intentionally over sampled the minority incumbents by two to one to assure that there was no bias.

6. Ricci v DeStefano • Facts • IOS did ride-a-longs and interviews with current Battalion Chiefs, Captains and Lieutenants determine the basic information regarding the Structure of the Department, the tasks required of individuals at each rank and the materials the department generally uses for training. • They intentionally over sampled the minority incumbents by two to one to assure that there was no bias.

7. Ricci v DeStefano • The information was used to create a Job Analysis questionnaire (JAQ) to be given to all incumbent Captains and Lieutenants to have them rank how important they feel a specific task, knowledge area, skill or ability is in their job. • The JAQ asked how important each task was to the successful performance on the job and how frequently it was necessary to perform it. • Frequency and performance were merged into a metric called “Criticallity or Essentiallity.” • Tasks above a certain Criticallity or Essentiallity threshold were designated for testing on the written and oral portions of the exam. • IOS stated that all the questions that were eventually selected were firmly rooted in the study materials.

8. Each test was 100 multiple choice questions. Was written below a 10th grade level. IOS also created an oral exam. Once the test was completed its was sent to a Battalion Chief from the Cobb County Georgia Fire Department and a retired Fire Chief from outside Connecticut for review. Ricci v DeStefano

9. Ricci v DeStefano The fire fighters took the test and the results were striking: 41 took the Captains exam: White Black Hispanic 25 8 8 Passed 16 3 3 77 took the Lieutenants exam: White Black Hispanic 43 19 15 Passed 25 6 3

10. The passing rate was almost twice as high for white candidates as black and Hispanic candidates. The results must be certified by the Civil Service Board to become final and initiate the next step in the promotion process. The City uses a “rule of three” to select persons for promotion and not only was the pass rate twice as high for whites of the 15 open positions only 2 minority candidates (Hispanic) could be considered to be promoted at that time. The City uses a “rule of three” to select persons for promotion and not only was the pass rate twice as high for whites of the 15 open positions only 2 minority candidates (Hispanic) could be considered to be promoted at that time. Ricci v DeStefano

11. Question 1 • What do you do at this point?

12. Ricci v DeStefano • Pursuant to the City’s contract with IOS, IOS was to provide the City with a “Technical Report” that would describe the examination process and methodologies and analyzed the results. The City did not request the report, but rather convened a meeting with the City’s officials including the City Attorney with IOS’s Vice President Chad Legel where the City conveyed is concern that the test discriminated against minorities.

13. Ricci v DeStefano • The results were distributed to the CSB for review without identification of individual scores. Just the scores and the race results and statistics were provided. When the results of such an exam to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. The City was confronted with arguments both for and against certifying the test results—and threats of a lawsuit either way.

14. The CSB held a number of hearings. The first one, many of the firefighters attended and many of them advocated that the test should be certified. Many stated that they had put in many hours of study, paid for study materials, and asked for mentoring in order to help them pass. Mr. Ricci had the material read and recorded because of his dyslexia so he could do well. Others, thought the test was inappropriate. It was not tailored to the situations or conditions not faced by firefighters in new Haven but rather New York or other urban locations. The test materials were also criticized as being too long, too expensive and too hard to get. Ricci v DeStefano

15. Ricci v DeStefano • At the second meeting the Fire Fighters Union asked that the Board perform a validation study on tests to determine whether they were job related. • A representative of the International black Professional Fire fighters association “beseeched the CSB to throw out the test as “inherently unfair” on the basis of the results. • Another suggested again that the City do a validation study on the test and that the results could be adjusted to allow for the promotion of a certain number of minorities.

16. Ricci v DeStefano • At the third meeting Legel went over the process again and stated that in his profession opinion, the examinations are “facially neutral” there is nothing in those examinations … that should cause somebody to think that one group would perform differently than another group.”

17. At the forth meeting, the CSB asked for expert review of the tests and the procedures by IOS. The first, was Christopher Hornick who operates a business in direct competition with IOS. Hornic admitted that he did not study the tests at length or in detail and had not seen the job analysis data, but told the CSB that the scores indicated a relatively high adverse impact for the IOS tests. He opined that his company finds “significantly and dramatically less adverse impact in most of the test procedures we design.” He stated that normally whites out perform ethnic minorities on the majority of standardized testing procedures but that he was a little surprised by the disparity in the candidates scores on the IOS tests. “But my conclusion is that we did have significant adverse impact.” Some of it he said is typical of what he has seen in other areas of the country and that the adverse impact was somewhat higher but in the range they have seen professionally, but in other ways is somewhat worse then what we’re typically seeing in the professions practiced by others.” Ricci v DeStefano

18. Ricci v DeStefano • Mr. Hornik indicated that the results could have been biased by • the 60/40 split required by the union contract, and • the fact that the test was not reviewed by anyone in the New Haven Department. • He also suggested that there were perhaps different types of testing procedures that are much more valid in terms of identifying the best potential supervisors. • Based on his knowledge of firefighters, he knows that a written tests is not as valid as other procedures. • He also suggested that Assessment Centers allow candidates to show how they would respond to a situation instead of describing it or identifying an option on a test. • He also tried to make clear that IOS had not created a test with adverse impacts that it should not have had.” • He suggested that the test be certified and work to change the process for future tests and that his company would be interested in helping the city undertake that task

19. Ricci v DeStefano • At the same hearing, Vincent M. Lewis, a Fire Program Specialist for the U.S. Department of Homeland Security, and a retired career firefighter from Michigan, testified that he believed the test was appropriate. • He stated that he had looked "extensively at the Lieutenant's exam and a little less at the Captain's exam," and believed that the candidates "should know that material." • His one comment was that "a number of questions in the Lieutenant's exam dealt with issues that an apparatus driver needed to know," and a candidate who had not had such training would be disadvantaged on those questions. • However, he generally "felt the questions were relevant for both exams," and believed that the New Haven applicants were advantaged over examinees in other locations because they were instructed exactly which chapters from the study materials would be on the tests. • He stated that he would not have changed anything about the way in which the tests were developed, and opined that any disparate impact could be due to a general pattern that "usually whites outperform some of the minorities on testing," or that "more whites ... take the exam."

20. Ricci v DeStefano • The last expert witness was Dr. Janet Helms, a professor of counseling psychology and the Director of the Institute for the Study and Promotion of Race and Culture at Boston College. • Her area of expertise "is not with firefighters per se but is more in the general area of how race and culture influence test performance more generally." • She did not examine the specific tests at issue. However, she offered several potential explanations for racially disparate impact on the tests. • First, "[w]e know for a fact that regardless of what kind of written test we give in this country that we can just about predict how many people will pass who are members of underrepresented groups. And your data are not that inconsistent with what predictions would say were the case." (emphasis supplied). • Second, Dr. Helms suggested that because 67% of the respondents in the JAQ survey were white, the questions may have been skewed toward their job knowledge, as "most of the literature on firefighters show that the different [racial and gender] groups perform the job differently." • Relying on information she had read in newspaper accounts of the situation in New Haven, she stated that the difference in performance may have been due to differences in opportunities for training and "informal mentoring" available to minorities.

21. Ricci v DeStefano • With respect to the oral exam, Dr. Helms suggested that people who are bilingual or "speak accented speech" may elicit more negative reactions from evaluators.. As general concerns, Dr. Helms mentioned that test takers may score lower if they are expected not to perform well, or if tests focus on "traditional ways of doing the job and the test-taker, in fact, uses innovative approaches.". • Additionally, she suggested that "removing" "socioeconomic status" from test scores "reduces the disparate impact to some extent."

22. Ricci v DeStefano • At the final CSB meeting, on March 18, Ude (the City's attorney) argued against certifying the examination results. Discussing the City's obligations under federal law, Ude advised the CSB that a finding of adverse impact "is the beginning, not the end, of a review of testing procedures" to determine whether they violated the disparate-impact provision of Title VII. • Ude focused the CSB on determining "whether there are other ways to test for... those positions that are equally valid with less adverse impact." • Ude described Hornick as having said that the written examination "had one of the most severe adverse impacts that he had seen" and that "there are much better alternatives to identifying [firefighting] skills." Ude offered his "opinion that promotions ... as a result of these tests would not be consistent with federal law, would not be consistent with the purposes of our Civil Service Rules or our Charter[,] nor is it in the best interests of the firefighters... who took the exams." He stated that previous Department exams "have not had this kind of result," and that previous results had not been "challenged as having adverse impact, whereas we are assured that these will be."

23. Ricci v DeStefano • Ude described Hornick as having said that the written examination "had one of the most severe adverse impacts that he had seen" and that "there are much better alternatives to identifying [firefighting] skills." • Ude offered his "opinion that promotions ... as a result of these tests would not be consistent with federal law, would not be consistent with the purposes of our Civil Service Rules or our Charter[,] nor is it in the best interests of the firefighters... who took the exams." • He stated that previous Department exams "have not had this kind of result," and that previous results had not been "challenged as having adverse impact, whereas we are assured that these will be."

24. Ricci v DeStefano • CSB Chairman Segaloff asked Ude several questions about the Title VII disparate-impact standard. • "CHAIRPERSON SEGALOFF: [M]y understanding is the group ... that is making to throw the exam out has the burden of showing that there is out there an exam that is reasonably probable or likely to have less of an adverse impact. It's not our burden to show that there's an exam out there that can be better. We've got an exam. We've got a result.... • "MR. UDE: Mr. Chair, I point out that Dr. Hornick said that. He said that there are other tests out there that would have less adverse impact and that [would] be more valid. • "CHAIRPERSON SEGALOFF: You think that's enough for us to throw this test upside-down ... because Dr. Hornick said it? • "MR. UDE: I think that by itself would be sufficient. Yes. I also would point out that ... it is the employer's burden to justify the use of the examination."

25. Ricci v DeStefano • Karen DuBois-Walton, the City's chief administrative officer, spoke on behalf of Mayor John DeStefano and argued against certifying the results. DuBois-Walton stated that the results, when considered under the rule of three and applied to then-existing captain and lieutenant vacancies, created a situation in which black and Hispanic candidates were disproportionately excluded from opportunity. DuBois-Walton also relied on Hornick's • Testimony, asserting that Hornick "made it extremely clear that ... there are more appropriate ways to assess one's ability to serve" as a captain or lieutenant.. • Burgett (the human resources director) asked the CSB to discard the examination results. She, too, relied on Hornick's statement to show the existence of alternative testing methods, describing Hornick as having "started to point out that alternative testing does exist" and as having "begun to suggest that there are some different ways of doing written examinations."

26. Ricci v DeStefano • Other witnesses addressed the CSB. • They included the president of the New Haven firefighters' union, who supported certification. • He reminded the CSB that Hornick "also concluded that the tests were reasonable and fair and under the current structure to certify them.". • Firefighter Frank Ricci again argued for certification; • he stated that although "assessment centers in some cases show less adverse impact," they were not available alternatives for the current round of promotions. It would take several years, Ricci explained, for the Department to develop an assessment-center protocol and the accompanying training materials. • Lieutenant Matthew Marcarelli, who had taken the captain's exam, spoke in favor of certification.

27. Question 2 • What do you do at this point?

28. Ricci v DeStefano • At the close of witness testimony, the CSB voted on a motion to certify the examinations. With one member recused, the CSB deadlocked 2 to 2, resulting in a decision not to certify the results. Explaining his vote to certify the results, Chairman Segaloff stated that "nobody convinced me that we can feel comfortable that, in fact, there's some likelihood that there's going to be an exam designed that's going to be less discriminatory

29. Now it gets weirdQuestion 3 • Who is going to sue who, and is it a Disparate Treatment case or a Disparate Impact case?

30. Plaintiffs allege that the non-certification vote was due to political pressure, particularly by defendant Rev. Boise Kimber, a vocal African-American minister who, it is acknowledged by all parties, is a political supporter and vote-getter for Mayor DeStefano. Plaintiffs' theory is that the defendants urged the CSB not to certify the results in the interest of pleasing minority voters and other constituents in New Haven whose priority was increasing racial diversity in the ranks of the Fire Department. Plaintiffs further argue that this pattern of political manipulation is in keeping with prior actions by the City of New Haven. The City disregarded the Charter-mandated Rule of Three in promotional decisions in the City's police and fire departments Plaintiffs argue that the apparent racial disparity in the results of the Lieutenant and Captain exams was due to the fact that hiring into, and promotion within, the Fire Department historically has been based on political patronage and promotion of racial diversity rather than merit. That the higher-scoring firefighters simply studied harder. In addition, they argue that the evident disparity was not appreciably worse on the 2003 examinations than other past promotional examinations. Ricci v DeStefano

31. Defendants argue that "the decision not to certify [the test] results was mandated by anti-discrimination federal, state and local laws." Alternatively, they argue that they had a good faith belief that Title VII mandated non-certification of the examinations, and they cannot be liable under Title VII for attempting to comply with that very statute. Defendants additionally argue that plaintiffs lack standing to bring their Equal Protection claim, or, if they do have standing, the claim lacks merit because all firefighters were treated the same, regardless of race, as no one was promoted as a result of the contested exams. Ricci v DeStefano

32. Plaintiffs counter that a "good faith belief” that certifying the test results would violate Title VII does not constitute a defense, as a matter of law, to an allegation of Title VII or Equal Protection violations against the plaintiffs. Plaintiffs' argument boils down to the assertion that if defendants cannot prove that the disparities on the Lieutenant and Captain exams were due to a particular flaw inherent in those exams, then they should have certified the results because there was no other alternative in place. Ricci v DeStefano

33. Ricci v DeStefano • The City responds that notwithstanding the shortcomings in the evidence on existing, effective alternatives, it is not the case that defendants must certify a test where they cannot pinpoint its deficiency explaining its disparate impact under the four-fifths rule simply because they have not yet formulated a better selection method.

34. Ricci v DeStefano • This case presents the opposite scenario of the usual challenge to an employment or promotional examination. • Ordinarily, as contemplated by the statute, the "complaining party" bears the burden of proving a disparate impact, and the "respondent" bears the burden of "demonstrat[ing] that the challenged practice is job related for the position in question and consistent with business necessity," or, alternatively, the "complaining party" may prevail by showing that an alternative employment practice with less disparate impact existed and that the respondent failed to utilize it. Here, the roles of the parties are in essence reversed, with the defendants, normally reflecting a "respondent" role in the Title VII disparate impact analysis, contending that use of the promotional exams, if they had been certified, would have had an adverse impact, and the plaintiffs, normally the "complaining party," arguing that the test results were sufficiently job-related to be defensible under the law.

35. Ricci v DeStefano • Here, the roles of the parties are in essence reversed, with the defendants, normally reflecting a "respondent" role in the Title VII disparate impact analysis, contending that use of the promotional exams, if they had been certified, would have had an adverse impact, and the plaintiffs, normally the "complaining party," arguing that the test results were sufficiently job-related to be defensible under the law.

36. What is even weirder, the case never made it to the jury. In fact no jury was ever convened. There was no argument on the merits. The lower court decided it on summary judgment. Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." An issue of fact is "material" if it "might affect the outcome of the suit under the governing law," and is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Ricci v DeStefano

37. Ricci v DeStefano • The decision did make some things clear. • First, the Court ruled that the tests used for firefighter promotions in New Haven were legally valid; • Second, it ruled that city officials there had failed to show that there were any alternative tests that could have had less of a negative impact on minority test-takers; • Third, it ruled that the city had not shown that it had a genuine fear of being sued by minority firefighters if it gave most of the promotions off the 2003 tests to whites; and • Fourth, it appeared to rule that, even if the city goes ahead and uses the test results to promote whites for most or all of any open slots, minority firefighters will have no legal complaint that they were victims of discrimination because the city can claim that it had to make promotions to avoid violating Title VII’s protection for the whites who scored best.

38. Ricci v DeStefano • When applied in a case involving a job test that seems to favor whites over minorities, this standard will require the employer to accept the results and implement them unless it can offer “objective” and “strong” evidence that the test was illegal because it was skewed to work against minorities, and unless it can offer “objective” and “strong” evidence that implementing the results will almost certainly bring on a lawsuit by minorities and that is probably would lose that lawsuit. • It will not be enough, the Court made clear, that the employer had a “good faith” belief that the test was skewed against minorities, or a “good faith” fear that it will get sued if it implements the results.

39. Ricci v DeStefano • It is hard to see how these requirements differ from demanding that an employer establish "a provable, actual violation" against itself. • There is indeed a sharp conflict here, but it is not the false one the Court describes between Title VII's core provisions. It is, instead, the discordance of the Court's opinion with the voluntary compliance ideal.

40. Ricci v DeStefano Opinion Analysis • When applied in a case involving a job test that seems to favor whites over minorities, this standard will require the employer to accept the results and implement them unless it can offer “objective” and “strong” evidence that the test was illegal because it was skewed to work against minorities, and unless it can offer “objective” and “strong” evidence that implementing the results will almost certainly bring on a lawsuit by minorities and that is probably would lose that lawsuit. • The cases of Frank Ricci and his 17 New Haven, Conn., firefighter colleagues — all whites except one Hispanic — now return from the Supreme Court to lower courts, with only one thing settled: their rights under a federal civil rights law were violated. • The Court’s ruling in Ricci, et al., v. DeStefano, says nothing at all about a remedy for that violation, and leaves a host of questions to be answered.

41. Ricci v DeStefano • What ever happened to the uniform Guidelines? • The court said that the test was valid only on the basis of testimony without cross examination, not based on any analysis of the test, but solely on the basis of a description of how the test was created. • [I believe that judges are intelligent people but I question their competence to validate a test based on descriptive testimony alone. What standards did they use to validate the tests?] • Has the court now give employers the ability to avoid the cost and expense involved in conducting a validation study in favor of a front end job analysis amd a test developed based on that job analysis, a job description and performance standards? • The decision seems to say that rejecting the efficacy of the foregoing process will expose you the charge of intentional discrimination.

42. Ricci v DeStefano • Although the Court decided that city officials in New Haven violated Title VII of the federal civil rights law by failing to promote any firefighters to seven slots for captain and eight slots for lieutenant, it is not clear how many slots are open now — whether more or fewer — and it is uncertain whether the lists of promotions that were to be made from the results of the test in the fall of 2003 remain intact. • The decision does not guarantee an individual firefighter, by name, that he will become a captain or a lieutenant in New Haven. And, while the winners of this lawsuit may very well claim that the denial of promotions entitles them to back pay, or even to money damages, the Court did not address any such claim, leaving it for further exploration by other judges. • While the Court seems to have said that, if an employer – public or private – conducts hiring or promotion tests that are legally sound, those who score highest and meet other selection factors cannot be denied a job or a promotion because of race, the decision does not say that the employer has any duty to avoid closing off jobs or the promotions so that no one is chosen (so long as it does not do so for racial reasons). • No duty, whatsoever, to keep slots open is imposed, although it may be doubted whether many employers would alter their payrolls to eliminate job opportunities just to keep from losing a lawsuit.

43. Ricci v DeStefano • The new standards the Court has imported into the Title VII legal equation are not really specific or well-defined, so it very likely will take future lawsuits to sort out just what the new requirements mean. In practical terms, it is very likely that employers will have to go to greater lengths to assure that testing protocols are race neutral, and will have to have sounder legal advice about the risks they take under Title VII if they apply test results that have a negative impact on minority workers.

44. Ricci v DeStefano • Among the large questions that did not get addressed at all, perhaps the most significant was whether government employers, even if they have a ”strong basis in evidence” that they think will justify making a race-based job selection, will escape liability under the Constitution.