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|Author||EDMUND H. MAHONY and JOSH KOVNER|
|Date Published||June 30, 2009|
|Original Publication||The Hartford Courant|
Legal implications for employers uring pre-screening tests when hiring.
Supreme Court Ruling Is Favorable to Business
This summer saw the resolution of the New Haven, CT Fire Department case at the Supreme Court. Basically, their test was well validated; but when used with job applicants, the majority group passed at a much higher rate than the minority group. Rather than deal with a law suit from minority candidates, the New Haven Fire Department said that test scores would not be used in the hiring process. However, another law suit was subsequently brought by the majority group who asserted that the test should be used despite its adverse impact -- the Supreme Court upheld that view. What it says to companies who use testing in their hiring process is that if you meet the EEOC requirements for test validity, then even if you have adverse impact, you don't have to worry about using the test results to make hiring decisions.
U.S. Supreme Court Rules In Favor Of New Haven Firefighters
Supreme Court Firefighter Opinion reverses a decision that U.S. Supreme Court nominee Sonia Sotomayor endorsed
By EDMUND H. MAHONY and JOSH KOVNER
The Hartford Courant
June 30, 2009
The U.S. Supreme Court ruled Monday that 20 white New Haven firefighters who were denied promotion were victims of illegal racial discrimination. But while critical of New Haven for using "raw, racial statistics" to invalidate a promotional examination, the court stopped short of ordering broad changes to race-and-hiring law sought by the firefighters and their supporters.
The 5-4 decision, which Justice Anthony M. Kennedy wrote for the majority, leaves intact the portion of the law that New Haven used to invalidate the examination after no black applicants scored high enough to qualify for promotion. But analysts said the decision could raise the standard that employers must meet in the future to reject test results in similar circumstances.
Employment experts said the high court's decision in Ricci v DeStefano likely would cause public and private employers to more carefully search for bias free means of measuring suitability for promotion. They said it is unlikely that the decision would put an end to similar legal disputes in the future
"Justice Kennedy's opinion for the court attempts to strike a delicate balance," said Jon Bauer, who specializes in employment discrimination law at the University of Connecticut School of Law. "The court was trying to find a way to reconcile two aspects of antidiscrimination law that are somewhat in tension: Employers are generally prohibited from making decisions on the basis of race. On the other hand, they sometimes are required to take race into account."
The firefighters, 19 whites and a 20th who is considered white and Hispanic, sued New Haven in 2004, a year after the city refused to certify the results of an examination on which only white candidates for the positions of captain and lieutenant scored high enough to qualify for promotion.
The suit turned on an apparent contradiction in Title VII of the Civil Rights Act of 1964. The law prohibits race-based decisions in hiring and promotion. But it also requires employers to scrap tests that produce "disparate" results among test takers of different races — unless the employer can prove the test is job-related, necessary and that no less discriminatory alternatives exist.
The city gave the test to 118 candidates, 27 of whom were black. None of the black candidates scored high enough to qualify for the 15 immediately available positions. All 20 of the plaintiffs qualified. After a series of raucous meetings, the city civil service board decided to scrap the test results and promote no one.
The court rejected "the far reaching argument that it's never permissible to throw out a test based on disparate impact," Bauer said. "But it recognized that the disparate impact provision of Title VII also serves an important purpose by preventing employers from using tests that aren't valid and have a racially exclusionary effect."
Bauer said the decision requires employers to find a "strong basis in evidence" to justify rejecting a promotional examination. The court did not quantify the standard, Bauer said. Rather, he said it found only that New Haven failed to meet it.
"It is probably going to take more litigation to flesh out the contours of what kind of showing an employer has to be able to make," Bauer said.
The plaintiff firefighters claimed in their suit that political pressure to diversify the officer ranks of the 411-member New Haven Fire Department contributed to the decision to reject the results.
"The import of the decision is that cities cannot bow to the pressure of politics and special interest groups to achieve racial quotas," attorney Karen Lee Torre said, surrounded by the 20 plaintiffs on the steps of the federal courthouse in New Haven. "The fact that more whites or more blacks or more Latinos passed a test is irrelevant."
Lead plaintiff Frank Ricci, who resigned from a second job and paid $1,000 for study aids to prepare for the test, said: "This is proof positive that people should be viewed as individuals, not statistics, and that the public deserves to have the most qualified fire officers answer the call."
Earlier Monday, Ricci's mother's knees nearly buckled when she learned of the court's decision while delivering a cake to Torre's office near the New Haven Green. Three of her sons are firefighters in New Haven, Middletown and Naugatuck.
"The justices were for America," Nancy Ricci said, regaining her balance. "Everyone is qualified to be a leader, a commander. New Haven won. The citizens won. Fire and any emergency (services) are color blind."
Ricci's father, James, called the decision: "a victory for all firefighters across the country. Now we are going to have the best commanders on the ground. It has been a long struggle. These guys worked hard to get this far. It is a shame the city of New Haven didn't recognize it."
Moments after Torre's press conference, Mayor John DeStefano convened his own in front of City Hall, two doors away. While recognizing the struggle undertaken by the plaintiff firefighters, he anticipated disappointment by their black colleagues.
"Today there is a natural tendency to count winners and losers," DeStefano said. "I have no doubt that the firefighters who brought the lawsuit genuinely feel that they played by the rules, that they did nothing wrong and that they were egregiously wronged. I also have no doubt that there is another group of firefighters today who feel that the rules are constantly stacked against them and that when they finally do start to get ahead, the rules get changed."
DeStefano denied that politics played a role in the decision to scrap the exam results.
At yet another press conference, New Haven fire Lt. Gary Tinney, president of the New Haven Firebirds, a chapter of an international group of black firefighters, threatened a suit of his own if a group of exclusively white firefighters is promoted to vacancies among the ranks of captains and lieutenants.
The high court, after ruling for the plaintiffs, returned the case to U.S. District Judge Janet Bond Arterton to determine what measures are necessary concerning the promotions and related issues, such as retroactive salary.
"I think this sets us back 45 years in employment law," Tinney said of the high court decision.
Monday's ruling reversed a decision by the U.S. 2nd Circuit Court of Appeals that was endorsed by Judge Sonia Sotomayor, whose nomination to the Supreme Court by President Barack Obama is pending. Critics of the nomination were said to be mining the decision for ammunition two weeks before her Senate confirmation hearing. The White House again defended the nomination.
In the opinion, Kennedy noted that New Haven claims to have scrapped the test out of fear that the results would lead to suits by black firefighters. He wrote, "Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions." Joining him in the majority were Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.
Justice Ruth Bader Ginsburg wrote in a dissent that the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotion in preference to them."
Ginsburg predicted the majority opinion "will not have staying power." Justices David Souter, Stephen Breyer and John Paul Stevens joined in Ginsburg's dissent.
Copyright © 2009, The Hartford Courant
Re-printable with permission.
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