By Helen Louise Norton, Associate Professor of Law, University of Colorado Law School. Prof. Norton's analysis of Ricci v. DeStefano is part of an ACS online symposium, "Experts on Ricci," being published here.
The Ricci majority takes the view that an employer who seeks to avoid using a test because it may discriminate against some has engaged in intentional discrimination against others. In so holding, the majority characterizes New Haven as declining to use the test in question "solely because the higher scoring candidates were white." The facts, however, are considerably more complicated: not only did the city's test impose a significant disparate impact against firefighters of color, but substantial uncertainty and controversy remain over the availability of less discriminatory, more accurate alternatives as well as the exam's ability to identify successful leaders. Indeed, in contrast to New Haven's exam - which relied only on a paper-and-pencil test and an oral interview to evaluate leadership potential -- two-thirds of fire departments surveyed use assessment centers that evaluate candidates for supervisory positions by requiring them to respond to real-world situations.