Summary of the decision
The case relates to the issue of racial discrimination in employment. The key question that arose was what measures employers would take where in an attempt to forestall discrimination such measures resulted to discrimination. The plaintiffs, twenty fire fighters, sued the city of New Haven, Connecticut claiming that they had been discriminated in relation to job promotions. The tests for promotions resulted to white candidates outperforming the minority candidates. These results led to various acrimonious debates.
In order to avoid lawsuits, the officials of City of New Haven annulled the results. The plaintiffs, nineteen white candidates and one Hispanic sued New Haven as they felt that they had been discriminated against in violation of the Equal protection clause and Title VII of the Civil Rights Act. The defendants, City of New Haven, argued that validation of the test results would have resulted to discrimination against the minority candidates which would have been a violation of the said Act.
The District Court and the Second Circuit upheld the defendant’s argument. The Supreme Court however reversed the decisions of these courts. In a 5-4 decision, it was held that the defendant’s had violated Title VII. The court based their decision on the fact that the defendants had not shown strong evidence that they would have been subjected to disparate-impact liability under the Act had they validated the test results. The Court further held that it is only such strong evidence that would justify an intentional discrimination to forestall a disparate-impact liability.
The test used by the city of New Haven
During the job analysis, they focused more on minorities to ensure that the test did not inadvertently favor white candidates. This information was used to come up with the written and oral examinations. The written exam had 100 questions written lower than a tenth grade level of reading. After the test was prepared, the candidates were given three months to study for the test. They were also given a list of the source materials from which the test was derived.
The results of the written exam counted for sixty per cent of the score while the oral exam counted for the remaining forty per cent. The requisite mark for promotion was set at seventy per cent. A total of 118 candidates sat for the exams. The assessors were superior in rank to the positions to be filled. Forty one candidates took the Captain’s exam; twenty five white, eight black and eight Hispanics. The nine best candidates comprised of seven whites and two Hispanics. Out of these only seven were to be promoted as that was the number of vacancies available. Evidently, no black candidate had passed. The situation was made trickier by the City’s ‘Rule of Three’. Pursuant to the City’s charter, the rule obtained that the positions should be occupied from among the three candidates who had passed.
With regard to the examinations for the position of Lieutenant, seventy seven candidates took part. In this exam the top ten were all white and the available posts were eight. By dint of the rule in the foregoing, no Hispanic or black candidate was eligible for promotion. The results worried the city officials. Rather than rely on the technical report as stipulated under a contact with the outsourced company, they convened a meeting where they expressed their concern that the results were discriminative to the minorities.
Why City thought the test had disparate impact on minorities.
Officials of the City felt that the test had produced results that would occasion discrimination against the minorities. From the test, only a possible two Hispanic could be promoted. No black candidate had passed thus appointing or promoting those that had passed would mean that majority of those appointed would be white. The City felt that such an undertaking would result to disparate impact on minorities.
Additionally, the officials felt that the result of the tests were not consistent with federal law and also their charter. On the basis of such inconsistency, they felt that validation of the tests would have an adverse impact which would lead to disparate impact on minorities. They also felt that the test as designed tended to favor the majority. They generally felt that there were other apt or alternative ways of assessing a candidate’s ability to serve.
The four-fifths Rule
Also referred to as the eighty percent rule, this rule is utilized in estimating adverse impact in employment. Essentially, it helps determine whether an employer’s selection either in promotion or hiring occasions disadvantages to members of a race, ethnic group or sex (Snell, 2012). The rule is used to monitor discrepancies in such activities. A selection is said to infringe the rule if the rate of selection for any race, ethnic group or sex is less than four fifths of the group with the highest rate of selection.
Why the white fire fighters believed the City had violated Title VII by throwing out the test results
The white fire fighters felt that the City in invalidating the results as they were unfavorable to a certain race amounted to disparate treatment. This they urged was in violation of Title VII which proscribes intentional acts of employment discrimination based on race, sex, religion and national origin. They argued that the City had rejected the results solely as a result of high scoring candidates being white. They maintained that the City had no other justification. This they contended was a race based decision which under Title VII was prohibited.
They further argued that the test was conducted under the auspices of the City. The tests followed their rules, guidelines and requirements. Thus by disregarding the test results because they produced an outcome that did not favor a certain race, the same amounted to disparate treatment as all the candidates had undergone the same process. They contended that this disparate treatment was in violation of Title VII.
The decision in the case
The Supreme Court held that the defendant’s had violated Title VII. The decision was based on the fact that the defendants had not shown strong evidence that they would have been subjected to disparate-impact liability under the Act had they validated the test results. The Court further held that it is only such strong evidence that would justify an intentional discrimination to forestall a disparate impact liability.
The Court was of the opinion that mere statistics indicating that the test results would occasion disparate impact liability was not strong evidence to justify the allowable disparate treatment under the Act. According to the Court, the City would only have been so liable if the exams were not job connected and unswerving with business necessity, or if there were inexistence equally legitimate less discriminatory alternatives that City refused to utilize. The Court further pointed out that fear of litigation could not justify City’s disparate treatment. The City being incapable of adducing such evidence had made a race based decision which was in violation the Act.
What happened to the white fire fighters?
The white fire fighters having been successful in the Supreme Court were granted summary judgment. An order of certiorari was also issued in their favor to quash the decision of the two subordinate courts. Consequently, the City validated the test results and promoted some of the fire fighters. Others had their pension benefits enhanced. The City also had to pay cash judgments to these fire fighters in order to settle the case. Their attorney’s fees were also paid by the City.
Recommendation to the C.E.O
As stated by the Supreme Court, the testing should be fair and well designed to ensure that it does not occasion adverse impact. Care and skill should be employed in the test design, methodology and criteria. It is very vital to begin the process with a job analysis to ascertain the nature of the job, skills, knowledge and abilities requisite to the job. In designing a test, current and former job holders may be consulted so as to come up with a relevant test. Importantly too, all the groups should be consulted to ensure that the test does not favor a particular group.
If there are source materials for the job then regard should be had to these too. Such materials should be relevant and up to date. The candidates to be selected should be afforded an opportunity to prepare for such test. This may be done by availing the materials relied on in designing the test. Independent assessors should be utilized to rank the candidates to enhance fairness. It is also important to consider the composition of these assessors. Owing to the intricacy in this process and also to produce the best results, it is highly advisable that the process should be outsourced to an entity skilled and specialized in the same.
Analysis used to determine if the test violates Title VII
On the other hand, disparate treatment is allowable if the employer has a strong evidential basis that a test may result to disparate impact liability under the Act if they fail to take such measures that may amount to disparate treatment. Where an employer cannot adduce such evidence to justify the disparate treatment, then the test will be a violation of the provisions contained in Title VII.
Snell, A. and Bohlander, G. (2012) Managing Human Resources. Mason: South-Western, Cengage Learning.
