Subgroup Norming : Against the CRA of 1991

1. Ways to Reduce Adverse Impact • Subgroup Norming: Against the CRA of 1991 2) Banding: Randomly selecting individuals from bands (race-neutral banding) is legitimate to use. Race conscious banding is “iffy” but is best if protected-group status is used along with other factors (Bridgeport Guardians v. City of Bridgeport, 1991 & Officers for Justice v. Civil Service Commission 1992. 3) Alternate test or combinations of tests: Legal to use. From Section 1607(3)(B) of the Uniform Guidelines. Where two or more selection procedures are available which serve the user’s legitimate interest in efficient and trustworthy workmanship, and which are substantially equally valid for a given purpose, the user should use the procedure which has been demonstrated to have lesser adverse impact.

2. Ways to Reduce Adverse Impact (cont.) Manipulating Test Content: Unsettled. Upheld in Hayden v. Nassau County Hayden v. Nassau County In 1982, Nassau County and the Department of Justice entered into a consent decree to develop an exam without adverse impact Two failures, one in 1983 another in 1987 (adverse impact existed); Committee formed to construct a new exam Committee developed a new test with 25 components (adverse impact was still found!) Case Summary: To reduce adverse impact, 16 components were eliminated, only 9 retained Lawsuit filed by those claiming that they would have been hired if the full exam was used 2nd Circuit ruled in favor of the County, “the intent to remedy the disparate impact of prior exams is not equivalent to an intent to discriminate against non-minority applicants.” Although race was taken into account in redesigning the exam, it was deemed to be “ scored in a wholly race-neutral fashion”

3. Hayden v. Nassau County (cont.) • Although the County “won” in Hayden, the findings need to be interpreted in light of: • a history of past litigation (20 years worth) • the influence of an existing consent decree with the DOJ

4. Ways to Reduce Adverse Impact (cont.) Discarding Test Results: (see Ricci v, DeStefano) • Basic Facts From Ricci • Tests for promotion of firefighters to Lieutenant & Captain developed using content validity strategy • • Tests results in adverse impact on Blacks & Hispanics • • Competitor to IOS (Hornick) testifies telephonically without ever examining test ---tell CSB IOS test is valid, but assessment centers result in less adverse impact • • Others testify ---5 hearings ---lots of political pressure • • 2-2 vote (1 abstention) by CSB ---test not certified & Hornick is hired to develop new tests • • 17 Whites & 1 Hispanic sue

5. District Court Ruling (Judge Arteton) • Intent to remedy the disparate impact is not equivalent to an intent to discriminate against non-minority applicants • • Judge acknowledges that CSB decision to not certify is race conscious --- • • However, she rules it leads to race-neutral results because all exam results are discarded and nobody is promoted • 3-judge panel of 2nd Circuit issues short per curium ruling stating that Judge Arteton‟s ruling is well-reasoned & CSB is in unfortunate position of having no good alternatives • • 13 2nd Circuit judges vote 7-6 to not review Arteton‟s ruling en banc (when all the members of an appellate court hear an argument) • --- 6 Dissenters urge SC to review Arteton’s ruling

6. Written test = 60%, Oral test = 40% (based on collective bargaining agreement)

7. Ricci (cont.) • Reverse discrimination claim by 17 whites and 1 Hispanic who were not promoted • Issue was whether the City, in order to avoid losing an adverse impact lawsuit, engaged in intentional discrimination by using race in its decision to not certify the tests

8. Supreme Court Decision in Ricci • The City’s decision was motivated by race --- not certifying test results is illegal • “Whatever the City's ultimate aim--however well intentioned or benevolent it might have seemed--the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.” • Strong-basis-in-evidence standard adopted by the Supreme Court • “For the foregoing reasons, we adopt the strong-basis-in-evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII” • Good faith standard seen as too lenient • Certainty criterion viewed as too harsh

9. Ricci (cont.) Connecting SC decision with race-norming provision in CRA-91: If an employer cannot rescore a test based on the candidates' race, ｧ2000e-2(l),then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates--absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision Dissent: Flaws in the testing used by the City and possible alternative measures The Court today holds that New Haven has not demonstrated "a strong basis in evidence" ….. In so holding, the Court pretends that "[t]he City rejected the test results solely because the higher scoring candidates were white." That pretension, essential to the Court's disposition, ignores substantial evidence of multiple flaws in the tests New Haven used.The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes “… the City never asked whether alternative methods might better measure the qualities of a successful fire officer, including leadership skills and command presence. See id., at A522 ("I was under contract and had responsibility only to create the oral interview and the written exam").

10. Title VII v. The 14th Amendment? Warning from Scalia “ …the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how--and on what terms--to make peace between them. “… this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution's guarantee of equal protection? The question is not an easy one.