Employers cannot discriminate to remedy possible discrimination: firefighter examination generates plenty of heat

Citation

McMullen, A.L. (2010), "Employers cannot discriminate to remedy possible discrimination: firefighter examination generates plenty of heat", Human Resource Management International Digest, Vol. 18 No. 2. https://doi.org/10.1108/hrmid.2010.04418bab.001

Employers cannot discriminate to remedy possible discrimination: firefighter examination generates plenty of heat

Article Type: Employment law outlook From: Human Resource Management International Digest, Volume 18, Issue 2

In the USA, employers tailor their hiring policies to eliminate workplace discrimination. Many employers do so not only to comply with the law, but also to avoid discrimination litigation. After all, lawsuits are expensive, even when successfully defended.

The New Haven (Connecticut) Civil Service Board had this in mind when it threw out the results of a promotion examination when the results would have made no African-Americans and only two Hispanics eligible for promotion in the city’s fire-fighting ranks. This resulted in a legal battle with the Caucasian firefighters who were denied promotions.

In the end, the Supreme Court of the United States held that the decision to discard the examinations was improper. This article briefly states the current employment-discrimination law in the United States, discusses the lawsuit involving the City of New Haven and explains the implications for anyone charged with developing hiring and promotion policies.

Title VII of the Civil Rights Act of 1964 (42 USC § 2000e et sequation) prohibits employment discrimination based on race, color, religion, sex or national origin. The most common violation occurs when an employer treats a member less favorably because of a particular trait. This is known as “disparate treatment” or “intentional” discrimination, and the Supreme Court recognized that such cases “present the most easily understood type of discrimination” (Ricci v. DeStefano, 129 S. Ct 2658, 2672 (2009)).

An employee making a disparate-treatment claim must establish that:

1. 1.

   he or she belongs to a protected class;

2. 2.

   he or she applied for, and was qualified for, the job;

3. 3.

   he or she was rejected for the job; and

4. 4.

   the employer continued to seek applicants from people with the rejected employee’s qualifications (McDonnell Douglas Corp. v. Green, 411 US 792, 802 (1973)).

Once the employee presents this proof, the employer must provide a legitimate, non-discriminatory reason for rejecting the employee (McDonnell Douglas Corp. v. Green, 411 US 792, 802 (1973)). If the employer presents a legitimate reason for rejecting the employee, the employee must rebut by showing that the employer’s stated reason for rejecting the employee was pretextual and that the actual reason for the decision was improper discrimination (McDonnell Douglas Corp. v. Green, 411 US 792, 804 (1973).

As the law was originally written, those who wanted to discriminate could still do so by enacting policies and procedures that looked valid on their face but had an adverse effect on hiring people from a protected class. One can look to the Supreme Court’s decision in Griggs v. Duke Power Co. (401 US 424 (1971)) as an example.

The power company involved in that case had a policy of requiring a high-school education and satisfactory scores on two aptitude tests for initial assignment in any department other than its labor department. These requirements rendered a disproportional number of African-Americans ineligible.

The Supreme Court held that Title VII prohibited any employment practice that operated to exclude minorities when such a practice could not be shown to be related to job performance. In employment-discrimination parlance, this is known as “disparate impact” or “unintentional” discrimination.

To establish such a claim, the employee’s initial burden would be to show that a specific practice had an adverse effect on a protected class (Ricci, 129 S. Ct at 2673). If the employee makes such a showing, the employer would have to show that the practice is related to the position in question and necessary for the business (Ricci, 29 S. Ct at 2673). Once the employer presents a legitimate rationale for the practice, the burden returns to the employee to show the availability of an alternative practice with less disparate impact, but still serving the employer’s legitimate needs (Ricci, 29 S. Ct at 2673).

With this background, it is time to look at the litigation between the City of New Haven and its firefighters.

Under its charter, the city had to base promotions on a merit system, and it was required to fill vacancies by choosing a candidate from the top three scorers on an examination. In 2003, 77 candidates (43 Caucasians, 19 African-Americans and 15 Hispanics) took the lieutenants’ examination. With eight positions available, only the top ten candidates were eligible. No African-Americans or Hispanics scored highly enough to be eligible. A total 41 candidates (25 Caucasians, eight African-Americans and eight Hispanics) completed the captains’ examination. Seven positions were available. Of the nine candidates eligible for the position, seven were Caucasian and two were Hispanic.

Several in the city were concerned that it would be subject to a disparate-impact lawsuit if it certified the results of the examination. From January to March 2004, the Civil Services Board held five public hearings to determine whether to certify the results. At the final meeting, the board took a vote. One member recused, two members voted in favor of certifying the results and two voted to throw them out. The two-two deadlock resulted in the examination not being certified.

By not certifying the results, the city avoided a disparate-impact suit by minority firefighters. However, several of the Caucasian firefighters (and one Hispanic firefighter) sued, claiming that the failure to certify the results violated the prohibition against disparate-treatment discrimination. In other words, while avoiding one lawsuit, the city found itself in another lawsuit.

The city was initially successful, as the District Court (the federal trial court) and the Court of Appeals for the Second Circuit ruled in favor of the City (see Ricci v. DeStefano, 530 F.3d 87 (2d Cir. 2008)).

The Supreme Court ruled in favor of the Caucasian (and one Hispanic) firefighters on June 29, 2009.

The court began its analysis by holding that the city’s failure to certify the examination results would violate the disparate-treatment prohibition of Title VII absent a valid defense. The court stated that the city rejected the test “solely because the higher-scoring candidates were white” and that the relevant inquiry was “not whether that conduct was discriminatory but whether the city had a lawful justification for its race-based action” (Ricci, 129 S. Ct at 2674).

Both the firefighters and the city had proposals for how the court should have resolved the issue. The firefighters argued that the city should not have been allowed to take race-based adverse action, even if it was done to avoid a claim of disparate-impact discrimination. In the alternative, it suggested that an employer could take race-based adverse action only if he or she is unarguably in violation of the prohibition against disparate-impact discrimination.

On the other hand, the city contended that its conduct should have been permissible because it had a good-faith belief that such action was necessary to avoid disparate-impact discrimination.

The court rejected the approaches and instead announced that an employer may take race-conscious actions to remedy a possible disparate-impact claim only when there is a “strong basis in evidence” that such action is necessary.

The court explained the benefit of the standard: “It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation” (Ricci, 129 S. Ct at 2676).

In judging the case before it involving the firefighters, the court held that the city did not have a strong basis in evidence to justify throwing out the examination results. It stated that, given the results of the examination, the city was obliged to determine whether certification of the results would have resulted in disparate-impact discrimination. However, it held that the statistical disparity between those who took the test and those who passed the test, by itself, did not justify the failure to certify the results. The court so held even in light of evidence showing that there were better ways to test the firefighters than the examination used by the city.

The Ricci decision is still young; therefore, it is difficult to identify the role that it will ultimately play in employment-discrimination jurisprudence. However, the immediate effect is that it now makes it more difficult to remedy disparate-impact type discrimination after the fact.

The “strong-basis-in-evidence” standard will prohibit employers from correcting policies that they suspect to be discriminatory once they are implemented unless those policies are clearly suspect.

However, if the employer has a policy that may have an adverse impact upon a protected class, that policy should not have been established in the first place. The only way to avoid this situation is for employers to make additional efforts to ensure that their policies are non-discriminatory long before putting those policies into practice.

Anthony L. McMullenJ.D. is a licensed attorney in the state of Arkansas. He is a judicial clerk for the Honorable Waymond Brown, Arkansas Court of Appeals. In addition, he teaches the legal environment of business on a part-time basis at the University of Central Arkansas in Conway, Arkansas, USA.