If I were in the classroom, this case would be a real teaching moment. In the build up to this perfect storm, we find a city government which conducts a valid selection test for promotion in the firefighter ranks, but when a group of minority candidates is not fairly represented among those who pass the test, a public outcry asserts the test had a discriminatory impact on the minority group. So, the city exercises due diligence and applies the criteria outlined in the EEOC Uniform Guidelines for Testing and finds that indeed, the test falls short, and decides to re-calibrate the test, as required by the guidelines, to avoid a lawsuit. But in trying to do the “right” thing, the City is then sued by the employees whose promotions were thrown out.
As the lawsuit proceeds, it reaches the Second Circuit where a panel of appellate judges finds for the City. One of those judges is nominated for Supreme Court just as that court is hearing this case. Incidentally, she is Hispanic, and Hispanics are among the group suing the City. Then yesterday, in a dramatic moment, the appellate court decision is not only overturned, but the established EEOC interpretive guidelines for Title VII are all but defied.
What the Supreme Court essentially did was provide wiggle room for the employer who follows the rules in constructing a fair test, but later discovers that the test adversely impacts a particular group. The Court said that an emphasis on discriminatory impact creates, in a roundabout way, discriminatory treatment, and Title VII was not intended to replace on form of discrimination with another.
Now what?
First, dear readers, the terms:
“Valid selection test” means that the test, on its face, does not appear to be discriminatory. No intentional discrimination is likely because the test conforms to the requirements of the testing guidelines.
“Disparate impact” means that unintentional discrimination is possible by virtue of the fact that a whole group of candidates from a protected class is disproportionately underrepresented among those who pass. Disparate impact differs from disparate treatment which is found when an employer designs the test, for instance, to screen out a certain class of candidates intentionally. Tests must be based strictly on job-related criteria. However, if a test that is not discriminatory on its face, is later found to impact a class or group disparately, the correction requires application of metrics that look at overall representation in a group, in ratio to the representation in the promotion group.
“EEOC Uniform Guidelines for Testing” are the interpretive guidelines that have been in force since the 1970s and guide employer practices with respect to testing, and contain both the metrics and the protocol for demonstrating good faith in creating and administering tests.
Take home lessons?
First, I think the dissenting members of the Court had some interesting things to say. Ginsberg, in particular, rejected the court’s reasoning that an employer’s attempt to correct adverse impact necessarily leads to disparate treatment
Second, I think the legislature will be swift in addressing the court’s concerns and this may lead to more significant repercussions in the way employers test applicants.
The Court sums up their decision this way:
Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.
[ Thanks Ohio Employment Blog for this quote.]
If nothing else, this case reveals the tangled verbiage of the EEOC guidelines that have long troubled employers. (Take a look at the guidelines via the link provided above if you have any doubt as to WHY.)
The problem is, the court did little to untangle the mess.
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Want a little more information on EEOC guidelines? Here is a good link: EEOC Guidelines
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