An indictment of New Haven
THE US Supreme Court’s decision in Ricci v. DeStefano represents a huge victory for Frank Ricci and the other 19 New Haven firefighters, one of them Hispanic, who sued Mayor John DeStefano Jr. and others after the city refused five years ago to certify the results of two promotion exams. The 5-4 decision reversed the ruling of the three-judge panel of the US Court of Appeals for the Second Circuit that affirmed the District Court’s summary judgment in favor of the city and ordered the results certified.
But the decision also represents a serious indictment of the city. It was clear at the time what the city should have done when the exam results revealed an adverse impact on the minority applicants: conduct a validation study of the exams and either prepare better exams or come up with a better selection procedure or, if the exams were valid, promote those who qualified for promotion.
Instead, thumbing its nose not only at the federal government’s Uniform Employment Guidelines, which advise employers to conduct a validation study when a selection procedure has an adverse impact on a protected group, but also at the prohibition in Title VII of the Civil Rights Act against disparate treatment in employment on the basis of race, it threw out the exam results.
In the exam for captain, 64 percent of the white applicants, 38 percent of the Hispanic applicants, and 38 percent of the African-American applicants passed. Three Hispanics and three African-Americans passed, along with 16 whites. But the city’s charter requires that any promotion be made from the three top-ranked candidates and, with seven vacancies, only the top nine were eligible for immediate promotion. Seven were whites; the other two were Hispanics.
In the lieutenant exam, 58 percent of the whites, 20 percent of the Hispanics, and 32 percent of the African-Americans passed. Three Hispanics and six African-Americans passed, along with 25 whites. But with eight vacancies, only the top 10 were eligible for immediate promotion. All 10 were whites.
According to the Uniform Employment Guidelines established by the Justice Department and Equal Employment Opportunity Commission, which jointly enforce Title VII, a pass rate for a group that is less than 80 percent of that of the group with the highest rate indicates the selection procedure had an adverse impact on the group and may have violated the disparate impact prohibition of Title VII. The pass rates of the Hispanic and African-American applicants were well below 80 percent of the white applicants’ rates on both exams.
The guidelines also state that a test with an adverse impact will be considered discriminatory unless the employer conducts a validation study of the test to assess whether it is job-related and, as part of the study, whether there is a suitable alternative selection procedure with a lesser degree of adverse impact.
The city was not required by law to conduct such a study. But based on the degree of adverse impact in the exams, Justice Anthony M. Kennedy, writing for the majority in the Supreme Court ruling, said the city was “compelled to take a hard look at the examinations to determine whether certifying the results would have had an impermissible disparate impact.’’
Had it conducted such a study and had it found the exams were not job-related or discovered an alternative selection procedure that had a lesser degree of adverse impact, the city would have had what Kennedy called a “strong basis in evidence’’ for its stated fear that, if it certified the results, it would face a disparate impact suit by minority firefighters and a “valid defense’’ against any disparate treatment suit.
But the city did not conduct the validation study and there was, Kennedy said, no evidence the tests were flawed. Yet the city nevertheless threw out the results. It did so, the Supreme Court said, “solely because the higher scoring candidates were white.’’ In so doing, the city violated the disparate treatment provision of Title VII.
David R. Cameron is a professor of political science at Yale University. 