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.
In posing very different answers to the question of whether and when an employer may decide not to use such a test, the majority and dissenting opinions reveal a fundamental disagreement over the purpose and scope of antidiscrimination law. For example, they differed vigorously over an employer's responsibilities in the face of such uncertainty. The majority would require an employer like New Haven to continue with its test, despite its flaws, absent a "strong basis in evidence" for believing that the disparate impact was unjustified (the majority then discounted the evidence that the New Haven exam was in fact invalid). The dissent, in contrast, would permit an employer to reconsider its use of a practice that imposes a significant disparate impact if it had "good cause" to believe that such an impact was unjustified (e.g., evidence indicating the test's invalidity as well as the availability of less discriminatory alternatives).
The majority's approach ignored the broad and complementary purposes underlying Title VII's disparate treatment and disparate impact provisions, instead manufacturing a conflict between the two where none exists.
Indeed, Title VII sweeps broadly in its prohibition of job discrimination. It expressly bars not only employment decisions that intentionally classify individuals on the basis of race, sex, religion, and national origin (disparate treatment), but also those that -- regardless of intent -- have the effect of perpetuating longstanding patterns of exclusion, subordination, and hierarchy (disparate impact).
Employment practices that impose an unlawful disparate impact - i.e., measures that disproportionately exclude women and people of color without any meaningful relationship to successful job performance -- frustrate Title VII's objectives in at least two ways. First, they may sometimes conceal an employer's intent to discriminate against protected class members. Second, even absent an employer's discriminatory intent, employment practices that impose an unjustified disparate impact often reflect unexamined assumptions and stereotypes about the skills and capabilities that predict successful job performance. As the Court noted in Griggs v. Duke Power, "What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification .... [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds' for minority groups and are unrelated to measuring job capability."
As just one example of the relationship between disparate impact and Title VII's commitment to meaningful employment opportunity, recall that women's entry into the paid firefighting corps was made possible in large part by disparate impact challenges to a wide variety of recruitment, hiring, and promotion practices. No woman had ever served as a paid firefighter in the United States before Congress extended Title VII's reach to include state and local government employers in 1972. But attention to disparate impact thereafter led to the elimination of agencies' height and weight requirements that disproportionately excluded women from a wide range of public safety jobs without any demonstrable connection to successful job performance. Attention to disparate impact also led to changes in employers' physical ability tests that disproportionately excluded women from firefighting and other traditionally male jobs without a proven connection to workforce quality. To be sure, firefighters and other public safety officers must be strong and fit. But ostensibly neutral physical ability tests have sometimes been designed and implemented as part of a calculated strategy to exclude women. Even absent discriminatory intent, fire departments' choice of physical ability tests often operated to exclude women without any demonstrated connection to successful job performance. For example, some tests rewarded candidates' sprinting speed -- even though many fire departments forbid sprinting in practice because it is fatiguing and may exacerbate smoke inhalation. Others tests measured only a certain level of isolated upper body strength, even though successful firefighting requires full-body strength, stamina, and agility.
All agree that the promotional exam at issue in Ricci imposed a significant disparate impact against African-Americans and Latinos. Considerable uncertainty and controversy remain, moreover, over the test's accuracy in identifying the best candidates for promotion; further evidence suggests the availability of less discriminatory alternatives that better predict successful performance in leadership positions. The Supreme Court thus had the opportunity to demonstrate a commitment to equal opportunity and merit alike by permitting an employer like New Haven to reconsider its use of such a test. The majority's decision in Ricci declines this opportunity, however, instead revealing a narrow, rigid, and - until today - unprecedented view of Title VII's scope and purpose.
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