Supreme Court Says “Strong Basis” Needed In Disparate Impact Cases

The U.S. Supreme Court today gave employers some guidance today on the use of assessment tests, saying the results of these tests can not be ignored simply because they have an adverse impact on a protected group.

Ruling 5-4 in the case of Ricci v. DeStefano, the court’s majority said just because a disproportionate share of whites pass a test does not make the test discriminatory. Writing for the majority, Justice Anthony Kennedy said invalidating test results because of the statistical racial outcome, “… is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.”

Now, before an employer looking at the racial makeup of those who passed and failed a promotional exam and, almost certainly, other types of employment exams, can decide to throw out the results because it fears a discrimination lawsuit, it must have “a strong basis in evidence” to believe the test is discriminatory under Title VII of the Civil Rights Act of 1964 and its amendments.

Employment lawyers reacted with caution, saying the 92-page decision, including a dissent by Justice Ruth Bader Ginsburg, will take time to digest. Their initial impression, however, is that the court appears to have tempered if not invalidated the 80 percent rule of the Equal Employment Opportunity Commission. That rule states that the selection of a group at less than 80 percent of the group with the highest rate will be considered by the EEOC as evidence of discrimination.

However, the Supreme Court ruled statistics are not enough to show disparate impact. The decision says, “… a prima facie case of disparate-impact liability — essentially, a threshold showing of a significant statistical disparity …  and nothing more — is far from a strong basis in evidence that the City (of New Haven, Conn.) would have been liable under Title VII (for discrimination) had it certified the results.”

Merrily Archer, an employment lawyer in the Denver office of Fisher & Phillips who was previously with the U.S. Equal Employment Opportunity Commission, says the decision appears to be “completely at odds with the EEOC guidelines.”

Merrily Archer

“What does it mean to say an employer needs a strong basis in evidence?” she says. “My concern is an employer in the trenches. How is an employer going to apply this?”

“I disagree with the decision,” Archer adds.

A second attorney, who asked not to be identified because he had not completely read the opinion, suggested that the “court has muddied things up. The 80 percent rule was pretty straightforward for an employer: If you didn’t hit that percent, you had a problem.”

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Today’s decision came in a case from New Haven, Conn. brought by a group of  white and Hispanic firefighters who scored high enough on a promotional exam to have been appointed to one of several captain and lieutenant openings in the department. No blacks were in the promotional group, although they made up about 30 percent of the department’s workforce in 2003 when the test was given.

Although New Haven spent tens of thousands of dollars hiring consultants to develop the promotional exam and validating it, the city’s Civil Service Board refused to accept the results, essentially denying promotions to the successful test takers. It heard testimony over five days that the test was deficient and that a less-discriminatory test existed. In the end, the city’s decision was based largely on the statistical results, which showed the promotional exam had a disparate impact on blacks.

Kennedy’s decision invites employers to engage stakeholders in the planning, design, compilation, and validation of these exams, but doesn’t require any particular process to be followed in the development and selection of a test. Once the test is given, though, the mere statistical results are not enough to invalidate it. Writes Kennedy:

“Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed, §2000e-2(j), and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race.”

The court’s decision is a victory for the firefighters who sued and a slap to Supreme Court nominee Sonia Sotomayor. She was one of three appeals court judges who issued a one-paragraph ruling upholding the city’s decision. The brevity of the decision as well as the notoriety of the case has become an issue in  her confirmation by the U.S. Senate.

Lead plaintiff, Frank Ricci, became a sympathetic figure after telling the Civil Service Board that he had dyslexia and had paid a neighbor to read onto tape the study materials.

John Zappe is the editor of and a contributing editor of John was a newspaper reporter and editor until his geek gene lead him to launch his first website in 1994. He developed and managed online newspaper employment sites and sold advertising services to recruiters and employers. Before joining ERE Media in 2006, John was a senior consultant and analyst with Advanced Interactive Media and previously was Vice President of Digital Media for the Los Angeles Newspaper Group.

Besides writing for ERE, John consults with staffing firms and employment agencies, providing content and managing their social media programs. He also works with organizations and businesses to assist with audience development and marketing. In his spare time  he can be found hiking in the California mountains or competing in canine agility and obedience competitions.

You can contact him here.


9 Comments on “Supreme Court Says “Strong Basis” Needed In Disparate Impact Cases

  1. Does anyone else hear the chanting, “My test is better than your test…”? Will employers need to keep pumping tens of thousands of dollars into test development until the results match the 80% outcome of the Adverse Impact formula? I propose we use Schrödinger’s cat to make our decisions.

    Oh what a tangled web we weave, when first we practice to deceive… ourselves.

  2. From a legal standpoint, this is certainly a confusing decision that will keep lawyers gainfully employed for years to come; however, the financial impact of lawsuits are substantially less than the financial impact of bad hires.

    Consider this: 1) the 80% rule is a “squinty-eyeball” measure of disparate impact (i.e., DOL and EEOC scientists actually use complicated form of statistical analysis); 2) if an organization fails the DOL/EEOC test, their first step is not to take you to the cleaners… it is to examine your professional job analyses, job requirements, business necessity, and validation studies. If these are weak or inadequate, THEN they take you to the cleaners.

    How many organizations do you think have done their homework?

    Hiring only one color, age or class of people is a poor reflection on social responsibility…but not following professional practices it is an even worse way of running a business…much like donning lead sneakers to run a cross-country race.

  3. Comment for Dave…Hold on to your hat. Adverse impact is not per-se illegal…it is a quick way for the government to determine whether your hiring process is disproportionally screening-out a legally protected group.

    A.I. analysis is performed at the group, not individual, level. So far, at least, organizations are not legally required to hire unqualified people. If an organization can conclusively show a skill is necessary for both the job and the company; has documentation showing test scores have a strong relationship to job performance; and, has done everything they can to reduce effects of adverse impact, they are well within the Guidelines.

    It’s a normal blind-spot for most folks, but unless an organization hires everybody who apples, they are using some form of test… even interviews and resume screens are tests…and research usually shows they have a significant amount of A.I.

  4. Hi:
    Seems like a significant degree of confusion is stemming from a lack of distinction between the existence of disparate impact commonly found in hiring procedures (e.g., criminal background checks, credit reports, educational requirements, certain assessments, drug tests)and whether an employer’s use of a selection procedure constitutes unlawful disparate impact discrimination. In reality, the Ricci case continues to acknowledge that the 80 percent rule of thumb is still valid for triggering a disparate impact challenge–if you don’t hit the 80 percent mark, you don’t have a problem per se, rather you have a burden of justifying the use of the selection procedure. However, according to the Court a mere showing of statistical disparate imapct is not a strong basis in evidence that New Haven would have been liable under Title VII had it certified the results. That is due to the fact that New Haven would be liable for unlawful disparate-impact discrimination only if the hiring procedures were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served New Haven’s needs and the city refused to adopt it.

    I trust this information is helpful. As an aside, I must admit, I wouldn’t provide my name as a source either if I was commenting on a case I hadn’t completely read.

    Dave Arnold, Ph.D., J.D.

  5. Comment for Wendell – I wasn’t referring to the mathematics of an Adverse Impact analysis… which is performed at the Job Group level and REQUIRES the identification of the “most favored” group (the constant)in the formula. I was refering to the amount of money spent by employers trying to develop tests to AVOID adverse impact – which was the attempt by the employer in this case. Despite tens of thousands of dollars in developing a valid and reliable measurement tool they still froze in place when they failed to appease those who think 80% has any relationship to reality. 80% is, as Dave Arnold noted (above), a “rule of thumb” which may trigger a challenge. My point, although admittedly made with a healthy dose of sarcasm, is that fear of the challenge will cause on-going alterations to the VALID and RELIABLE tests ALL research depends upon, in an effort to approximate the results of a mathematical “rule of thumb” formula.

  6. this is a great discussion with excellent points by all parties. I will refrain from commenting here, but check out the thread from my article yesterday for more info on my thoughts.

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