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December 3, 2007
Solicitor General Asked for Views in Title VII Disparate Impact Testing Case
Another one from the good people at SCOTUSBlog this morning:
In another order [this morning], the Court asked the U.S. Solicitor General for the federal government’s views on an important case on legal liability for using tests that are alleged to be racially discriminatory in determining the qualifications of public school teachers. The case is New York City Board of Education v. Gulino, et al. (07-0270). The city school system imposed a state-required a test of general knowledge for teacher certification. It was sued under Title VII of the civil rights law for alleged racial discrimination in its hiring practices. There is no deadline for the Solicitor General to respond.
The Second Circuit affirmed in part in the lower court decision titled: Greene v. New York City Board of Education, 03-9062 (2d Cir. Aug. 16, 2006):
The essence of their claim is that the New York State Education Department (“SED”) and the New York City Board of Education (“BOE”) have discriminated against these aspiring teachers through the use of two standardized certification tests, the National Teachers Examination Core Battery (“Core Battery”) and the Liberal Arts and Sciences Test (“LAST”) of the New York State Teacher Certification Examinations. After a long trial, the district court (Motley, J.**) found in favor of defendants, holding that, although the two certification tests had a disparate impact on the employment prospects of African-American and Latino candidates, defendants avoided Title liability because the tests are “job related.”
We hold that the district court initially erred in holding that SED is subject to Title VII liability, but we affirm the district court’s holding that BOE is subject to Title VII liability as appellants’ employer. As to the merits of appellants’ Title VII claim, we find both legal and factual errors in the district court’s holding in favor of appellees. We are not convinced, however, that the judgment in favor of appellants is warranted as a matter of law.
This claim has been pending since 1996 and if cert. is granted, should provide more insight into the meaning of "job-relatedness" in the test validation context under the disparate impact framework.
It may also shed light on who is an employer for purposes of Title VII.
PS
December 3, 2007 in Employment Discrimination | Permalink
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Comments
Gulino is potentially the most important disparate impact case since Wards Cove; the underlying question is whether an employer (here the NYC school system) that complies with a state mandated licensing requirement that produces adverse impact (teacher certification exams) must prove the business necessity (exam validity) of the licensing requirement the state adopted, or whether instead compliance with state licensing requirements that cause adverse impact is exempt from disparate impact challenge. Because the state is not an employer, it was dismissed from the litigation; the city, which is an employer, claims it should not be forced to bear any burden to show the business necessity of a test imposed by state law it had no role in creating.
State licensing requirements are common and commonly cause adverse impact;they range from paper and pencil testing requirements (including the bar exam) to felon disqualification standards in an ever growing array of occupations. Most lower courts have held that such licensing requirements are exempt from challenge under disparate impact law despite their adverse impact; the second circuit disagreed, though it noted that the city might be able to meet its burden without a formal validity study, and remanded for a determination of business necessity / validity. The city's petition argues it should have no burden whatsoever when it complies with a state mandated licensing requirement.
Posted by: Michael Masinter | Dec 3, 2007 12:24:37 PM
