Disparate Impact Claims and Test Validation: A Case Study

Overlawyered had a post yesterday where it appears to take issue with the DOJ suing Virginia Beach for maintaining a police entrance exam that had a disparate impact on Hispanics and Blacks because of a math component on the exam.  Apparently, the city agreed to pull the math component and agreed to pay up to $160,000 to applicants who were disparately impacted by the old test.

Although one can understand why someone who does not practice employment discrimination law might not understand why a police officer applicant having to take a math exam to become a police officer might violate Title VII (and might even be the type of wasteful litgation that Overlawyered generally concerns itself with), the fact of the matter is that the test in question could most likely not be properly validated under any of the criterion established for such purposes under Section 703(h) of Title VII.

For instance, the math test for police officers probably could not be shown to be criteron-related to the job at hand because there was probably no study of correlation between those who passed the test with higher scores actually being better police officers. Nor as a matter of content-related testing could the math skills tested on the test be shown to be part of what police officers did on a day in, day out basis as part of their duties.

The reason such validation of entrace exams are so important is that because, as the Supreme Court and Congress have both determined, permitting such testing without there being a relationship to the actual job duties at hand can lead to arbitrary barriers to advancement for historically oppressed individuals and freeze the status quo. Indeed, the watershed case of Griggs in 1971 which first recognized disparate impact theory under Title VII involved unnecessary degrees and testing for a job that did not require such high levels of education or aptitude and kept blacks out of certain job categories through putatively "neutral" means.

In short, if the test that Virginia Beach was using for police officer applicants was not related to the actual duties of a police officer or predictive of sucess as a police officer, than the test was acting as an impermissible barrier to advancment for a segment of society that has been historically discriminated against in the hiring of such jobs.   

And to state the obvious, I don't agree that such a case has been overlawyered or that disparate impact theory is somehow illegitimate as the good folks at Overlawyered (and their allies at NRO) seem to suggest.

PS