In June, the U.S. Supreme Court ruled in favor of white firefighters and against the city of New Haven in Ricci v DeStefano. The city had thrown out the results of a promotions test because no blacks scored high enough to qualify for promotions. The city claimed that had it certified the test results, it could have been sued by black firefighters under the disparate impact theory.
In a 5-4 decision split along party lines, the Supreme Court held that the city violated Title VII of the Civil Rights Act when it discarded the test. The decision was based on an analysis of Title VII’s provisions on disparate treatment and disparate impact. New Haven intentionally discriminated against white firefighters (disparate treatment) to avoid liability for unintentional discrimination against black firefighters (disparate impact).
Years ago, in an effort to make the test more “black-friendly,” New Haven hired a consulting firm to create an easier test. Since blacks disproportionately failed to qualify for promotions with the new test, government entities and test consulting firms are “more confused about compliance with the nation’s discrimination laws.” (Source) Unfortunately, many fear to simply hire people based on objective scores, as disparate impact lawsuits usually result. What are their post-Ricci options?
Some defend multiple choice civil service tests and say they “test job knowledge in many professions, including medicine and law.” Detractors cite racial disparities as evidence that the tests are unreliable.
Unfortunately, there are no easy answers. Government entities may be able to reduce disparate impact claims by doing away with paper-and-pencil or computerized multiple choice tests altogether (instead of spending money hiring firms to constantly rewrite them) and assess candidates and employees on such factors as…
No, wouldn’t work. Whatever factors hiring and promotions are based on, racial differences will become apparent, and suits will follow.
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