Tuesday, June 30, 2009

Zimmer on Ricci

Zimmer Mike Zimmer (Loyola), co-author of the leading casebook on employment discrimination and friend of the blog has provided these thoughts on the Supreme Court's Ricci decision from yesterday.

1. The Holding. The defendants’ decision to not use test results because their use would have meant that no African-American and only two Hispanics, who made up over half of the testtakers, would be promoted was intentional disparate treatment discrimination against the white testtakers who would have been promoted if the test results had been used. That the adverse impact of the test results amounted to a prima facie case of disparate impact discrimination was not a defense to a disparate treatment case unless the employer has a strong basis in evidence to believe that it will be liable for disparate impact discrimination.

2. A Procedurally Unusual Decision. The district court, affirmed by the court of appeals, had granted summary judgment for the defendants. Not only did the Supreme Court reject the summary judgment for the defendants but found that plaintiffs were entitled to summary judgment. That means that the Court found that no material facts existed that would justify a trial. The four slip opinions run a total of 89 pages; 31 pages – 38% of the total -- deal with relatively straight forward recitation of facts, most of which are quite constested.  Many more deal with application of facts to law, again with most applications hotly contested. Reading this suggests that the Supreme Court has taken upon itself the role of a trial court.

3. Acting When the Race of Those Affected is Intentional Discrimination. The key factual finding of the Court is that: “All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race – i.e., how minority candidates had performed compared to white candidates. . . . Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. . . . [T]he city made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white.”

Justice Kennedy takes an enormous leap from the first conclusion – that the City acted because it knew the “statistical disparity based on race”—to his second – that it rejected the test “solely because the higher scoring candidates were white.”  In all the pages of factual recitation and application, there is simply no reference to any evidence that the sole cause of the decision was because using the test results would benefit whites. Is there no difference between intending not to disadvantage African-American and Hispanic candidates and intending to discriminate against the white candidates?

When the Civil Service Board made its decision, it only knew what the racial distribution and therefore the potential disparate impact if the test results were used. It did not know the identity of any of the testtakers. Therefore, it appears that an employer conscious knowledge of the race of those affected by its decisions suffices to make out intentional disparate treatment discrimination. This appears to be a tremendous change in the law.  For example, in Justice O’Connor’s concurrence in Price v. Waterhouse, she indicated that, “Race and gender always ‘play a role’ in an employment decision in the benign sense that these are human characteristics of which decisionmakers are aware and may comment on in a perfectly neutral and nondiscriminatory fashion.”

Justice Alito is convinced that, because an important participant in the political process was an African-American preacher, the decision of the CSB was “because of race” as a matter of law. Justice Ginsburg argues that the decision may have been made “because of politics” and not race since the white firefighters and their union were vociferous advocates for using the test. The decision may have been because of race or because of politics or because of some of each. Doesn’t this suggest a factual question that deserves a trial?

4. Should the African-American and Hispanic Testakers Claim Disparate Treatment Discrimination? Suppose that New Haven now uses the results of the tests and promotes some white firefighters. Because the City knew the race of those promoted, was that intentional discrimination against minority testakers who were not promoted? If not, why not? Is using the test results to promote people different from deciding not to use them?

The Supreme Court has been edging toward establishing a color-blind standard for equal protection, see Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S.Ct. 2738 (2007) (plurality opinion), and Ricci appears to import that into Title VII. These decisions involve challenges by whites to the use of race in a way that gives advantages to minority group members or, as here, removes an absolute impediment to the advancement of African-Americans and Hispanics. If a color-blind standard can be used by white plaintiffs, why can’t these minority firefighters rely on it?

5. Is Proof of Intent to Discriminate Reduced to Proving the Defendant Knew the Race of the Affected Individuals? Is racial consciousness, when acted upon, the same as acting with an intent to discriminate? If so, Ricci revolutionizes discrimination law. Assume an African-American applies but is rejected for a job after an interview. Does she establish defendant’s liability by getting the defendant’s interviewer to admit that she was conscious of the fact that the plaintiff is black?

6. The Strong Basis in Evidence Justification. In United States v. Board of Educ. of the Township of Piscataway, 91 F.3d 1547 (3rd Cir. 1996) (en banc), cert. dismissed, 522 U.S. 1010 (1997), the court had imported equal protection analysis into Title VII’s treatment of affirmative action. Does the Court’s adoption of the strong basis in evidence test effectively implement that importation?  Only Justice Ginsburg in dissent puts this decision into context with the Title VII affirmative action decisions to criticize this decision. Are these affirmative action decisions in jeopardy now?

7. The “Q” Word Strikes Again. Is the fear that employers would have an incentive to use racial quotas what drives this decision?

8. Why Isn’t There Strong Support for Disparate Impact Liability? The Court concluded that, “The racial adverse impact here was signicant, and . . the City was faced with a prima facie case of disparate-impact liability.” The Court then minimizes what that means: “[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 would have been liable under Title VII had it certified the results.”  Does this undermine the significance that this prima facie showing shifts both  the burden of proof and of persuasion to the defendant?  Is the Court attempting to reinstate Wards Cove?

9. Was the Test Job-Related and Consistent with Business Necessity as a Matter of Law?  The written examination part of the test asked questions based on the testtakers ability to memorize extensive documents. Under the approach of the EEOC Uniform Test Guidelines as well as professional test standards, what IOS did was to construct a test that was supposedly content validated, i.e., that it was a sample of the job. While IOS supposedly did a job analysis, neither taking written or oral exams were involved in the jobs of lieutenant or captain in the fire department.  Nor is there any indication that memorization and recall of documents played any role at all in the jobs for which the test was to be used. The use of “assessment centers” where testtakers play the role that replicates the actual job can be content validated as job samples. Isn’t there at least a question of fact whether the test that was used was not job-related and not consistent with business necessity?

10. Was Section 703(h) Test Provision Superseded by the 1991 Civil Rights Act? The Court does not address the jurisprudence associated with the test exception in original §703(h). Has the Court decided sub silentio that this provision and its underlying jurisprudence has been repealed when Congress codified disparate impact law in new § 703(k)?

11. Were There No Less Discriminatory Alternatives as a Matter of Law? The record showed alternatives that were less discriminatory – simply altering the ratio of written to oral scores appeared to have reduced discriminatory impact in Bridgeport, using “assessment centers” or altering the “rule of three” to a banding approach – all were alternatives that could have been adopted instead of the test that was used.  The Court appears to assume that, because it was too late to adopt any of these alternatives to resuscitate this test, they could not count as alternatives. But, in fact, the City could consider these precisely because it had decided not to use the results of this test.

12. Should the Minority Testtakers Claim Disparate Impact Discrimination? Assuming the City would now use the test results, should the African-American and Hispanic testtakers bring a disparate impact claim? With the Supreme Court deciding as a matter of law that the test was job-related and consistent with business necessity and that there were no less discriminatory alternatives available, is there anything left to contest?

13. Empathy for Whom? With the statement by President Obama that he seeks to appoint Justices who have empathy, what does Ricci suggest about empathy? Justice Kennedy concluded that, “Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefighters here invested substantial time, money, and personal commitment in preparing for the tests. . . . [O]nce [the test process] has been established and employers have made clear their selection criteris, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race.” Nothing in any of the opinions suggest that the employer had committed itself in advance to use the test results no matter what they might be. Is the Court suggesting that the testtakers had some sort of contractual based right to have the test results used? The last part – about expectations concerning race – would appear to undermine such a contractual claim. However, what about the expectations that employers would not use employment practices that cause a disparate impact? Justice Ginsburg puts the context of this case into the larger frame of the longstanding discrimination minority firefighters have faced and the use of the disparate impact theory to attack their exclusion. Doesn’t this decision defeat their expectations in order to satisfy the expectations of the white testtakers?

14. Is This 1989 Redux? It has been twenty years, but has a new conservative majority in the Roberts Court been able to undermine Title VII just as the Rehnquist Court majority did then? Will Justice Ginsburg’s prediction that this decision will not last prove true?  Will this new majority take the step argued by Justice Scalia to embed Ricci in the Constitution by striking down disparate impact analysis as unconstitutional?


Thanks for the expert analysis, Mike!

MM

http://lawprofessors.typepad.com/laborprof_blog/2009/06/zimmer-on-ricci.html

Employment Discrimination | Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d8341bfae553ef0115718edf67970b

Listed below are links to weblogs that reference Zimmer on Ricci:

Comments

Do you really and truly find nowhere in the opinion an objection from the Court to New Haven's taking these actions AFTER the fact, after the rules had been laid down and accepted by all?

It's not like we haven't been designing tests for years. Experimental and test design is that you create a test, validate it BEFORE it is used, and change it then if needed. If the city is worried about how its test will perform, they create the test, test it on a sample of firefighters (maybe from another department) and analyze that. If they dislike its results that's when they consider alternatives.

The way you would have the city give a test, consider its results, and then get to retest and retest and retest and retest until the city gets the results it wants is ludicrous and unfair. What sort of world do you legal types live in where that would be okay and where you would not object to having that done to your clients?

The court said no calvin ball. In fact what the court said was no after the fact changing of the rules unless you can show with strong evidence that your actions were justified.

Posted by: jerry | Jun 30, 2009 8:05:11 AM

This is mostly a great analysis, but I think Prof. Zimmer seriously misrepresents Alito's concurrence.

Alito clearly did not say that "because an important participant in the political process was an African-American preacher, the decision of the CSB was “because of race” as a matter of law." Alito wrote separately to argue that if the Court had adopted the standard suggested by the dissent, affirming summary judgment, as Ginsburg would do, would be inappropriate. In other words, if Ginsburg had written the majority opinion, Alito argues that the Court could not have affirmed the lower courts, but would have had to remand to resolve the factual issues. (Although he doesn't specifically say "remand," he refers to the inferences a reasonable jury could have drawn from the factual record). Your recognition of factual issues indicates that you agree with Alito more than with Ginsburg.

Posted by: JP | Jun 30, 2009 8:32:57 AM

I still don't see why VII(2)(m) isn't the controlling factor here. That paragraph states pretty clearly that if race was a factor in the decision, then the decision is illegal, no matter what other factors might have been involved. And City of New Haven has flat-out stated that race was the PRIMARY reason for their decision!

Indeed, much of the case revolved around whether or not New Haven could expect to be sued for the all-white promotion results. Unfortunately for them, they lose either way; if they didn't expect to be sued then they had no reason not to certify the results, and if they DID expect to be sued than a decision not to certify was inherently based on racial factors!

Posted by: DensityDuck | Jun 30, 2009 12:05:50 PM

The Supreme Court created an entirely new standard for complying with Title VII of the Civil Rights Act of 1964. It then applied this new standard to the actions of the City of New Havens’ actions and concluded that it failed to satisfy a requirement that had not been known. Fundamental notions of Due Process require that a party to litigation be given notice and an opportunity to be present evidence. At minimum, a party should be given “fair warning” of the standard that would be applied. The case should have been remanded for a determination of whether there was a “strong basis” for believing that the examinations were job related and consistent with business necessity.

Associate Justice Samuel Alito concurred with majority's decision to enter summary judgment against New Haven but in a concurring opinion, he argued passionately that a jury could have found that the City discriminated against the white and Hispanic firefighters. One cannot have it both ways, either summary judgment was appropriate or there was a genuine issue of fact that required a trial.

The majority also found that the promotional tests had been validated when the record indicated that that there was disagreement among those who testified concerning the examinations’ validity. As it was undisputed that the examinations had an adverse impact on African American test takers, the critical question was whether the examinations had been properly validated. The evaluations of the examinations’ validity during the Civil Service Board hearings were, at best mixed, with some experts contending the examinations were valid despite their adverse impact and other experts who concluded that the examinations were flawed and that there were alternate selection procedures available that would not produce a disparate impact. The majority chose to discount this evidence and to accord more weight to testimony that the examinations were valid. There were at least two disputed issues: (1) whether the examinations were valid and (2) whether there was an alternate selection practice available that would not produce a disparate impact.This factual dispute should have been resolved by a fact finder at the trial court level.

Posted by: Leland Ware | Jun 30, 2009 6:54:47 PM

Ware: Please address the issue of VII(2)(m). I don't understand why this is even in dispute. The Supreme Court is not "creating a new standard"; they are simply applying the standard that has existed for over thirty years.

You are correct that this standard is almost never applied in favor of white men, but "equal protection under law" is a knife that cuts both ways.

"Fundamental notions of Due Process require that a party to litigation be given notice and an opportunity to be present evidence."

Actually, this was all done at the district-court level. This case did not start out in the Supreme Court. And if you want to complain about inventing doctrine, then the judge at the district-court level (and those at circuit-court level) said that it is perfectly acceptable for an employer to conduct a test to determine candidates for promotion, and then throw out the results if it doesn't like the racial mix, and that this is okay as long as nobody gets promoted. You seriously don't think that this is open for massive abuse? Let's say, for example, that eighteen black men had passed, instead of seventeen whites and one Hispanic. If the city had declared this to be invalid because of the racial distribution and thrown out the results, would we even be having this discussion?

Posted by: DensityDuck | Jul 1, 2009 9:48:47 AM

"the critical question was whether the examinations had been properly validated. The evaluations of the examinations’ validity during the Civil Service Board hearings were, at best mixed, with some experts contending the examinations were valid despite their adverse impact and other experts who concluded that the examinations were flawed and that there were alternate selection procedures available that would not produce a disparate impact. The majority chose to discount this evidence and to accord more weight to testimony that the examinations were valid. There were at least two disputed issues: (1) whether the examinations were valid and"

What a shame that the City of New Haven had contracted with IOS to have IOS write a technical report validating the test, but before IOS had a chance to write that report, the City of New Haven, threw the test out. Perhaps that choice of New Haven along with the ample documentation of the elaborate process that IOS went through to create a neutral test is why the justices gave more weight to testimony that the examinations were valid than the testimony from an IOS competitor that it was not or the complaints of a few that the test contained a few bogus questions.

Reminds me of the old joke "The guy who shot Robert Kennedy, Sirhan Sirhan, goes up for parole every year. Once he even told the parole board that if Kennedy was alive today, he would speak in his favor and say let him go. What a tough break, you know? The one guy who would have supported him, and he shot him."

"(2) whether there was an alternate selection practice available that would not produce a disparate impact."

I honestly don't understand this part. Was the procedure to create the test the City used valid? Was that procedure reasonable? Was the procedure well known and open and discussed? Was that procedure disputed in anyway before the test results were known?

I understand the way the city tested people may not be considered best of practice, and I also agree that the weights chosen for portions of the test were probably an arbitrary (though legally contractual) agreement between city and union.

But if the process they used was open, reasonable, validated to be able to create a proper test, and undisputed, why does the city get a chance AFTER the fact to toss the results and find a test more to their liking?

Does that mean that ANY city that does not test with that test currently thought to be absolutely the best is liable for civil rights infringements? Or somehow gets the power to toss results and contracts out the window?

Posted by: anon | Jul 1, 2009 11:52:37 AM

Leland,

I agree with everything in your comment, except part of your middle paragraph. Alito argued "that a jury could have found that the City discriminated against the white and Hispanic firefighters" under the standard suggested by the dissent. It is not inconsistent to argue that, under the majority's standard, summary judgment for the Plaintiff's was appropriate, while under the dissent's standard the case would have been sent to a jury.

Posted by: JP | Jul 1, 2009 12:21:12 PM

There were actually three disputed issues: (1) the City’s actual intent when it decided not to certify the examinations, (2) whether the examinations were valid and (3) whether there was an alternate selection practice available that would not produce a disparate impact.

The majority conflated intent to discriminate with intent to avoid liability under the disparate impact theory. These are not the same.

The majority chose to discount the evidence in New Haven’s favor as a few “stray remarks” and to accord more weight to testimony that the examinations were valid. This sort of fact finding should not occur at the appellate level

Alito argued that a jury could have found that New Haven intentionally discriminated against the white and Hispanic firefighters. A jury might also have found that that New Havens’ actions were not motivated by racial animus.

Posted by: Leland Ware | Jul 1, 2009 1:12:44 PM

Jesus, am I talking to myself here? VII-2-m. Refusing promotions in order to avoid a racial-bias lawsuit is INHERENTLY a hiring decision based on racial factors!

The central fact is that the city got the results and THEN decided not to certify. It would have been acceptable if the city had said "we think the test is biased, we're not promoting anyone" BEFORE the results came in. But it is not legal, under Title VII, to look at the results of a hiring or promotion test and THEN refuse to certify them based on racial grounds.

Posted by: DensityDuck | Jul 1, 2009 4:06:55 PM

Yeah, DensityDuck, you are talking to yourself because even the Supreme Court in Ricci didn't go as far as you suggest the law requires. Ricci holds that an employer can refuse to follow a test that clearly violates the disparate impact theory of Title VII. That makes sense because there is a presumption that a statute doesn't have directly contradictory provisions (in this case, disparate impact and mixed-motive disparate treatment, which I think is what you are referring to). The dispute in Ricci is whether an employer can refuse to use a test that MIGHT violate the disparate impact theory. That is, if it looks like a test might be discriminatory, can an employer scrap it and start over again with a process that isn't discriminatory to anyone?

Posted by: Jeff Hirsch | Jul 1, 2009 5:50:10 PM

No, I'm referring to the actual text of Title VII. I'm not trying to make a "disparate impact" or "disparate treatment" argument--I agree that neither of those is relevant, as the impact was the same for everyone (nobody got promoted) and the treatment was the same (everyone took the same test, everyone was scored in the same way, and everyone was ranked against everyone else.)

But Title VII still says that racially-motivated hiring decisions are illegal. Indeed, it says that if race played ANY role in the decision, then it's illegal, even if other reasons were presented!

"The dispute in Ricci is whether an employer can refuse to use a test that MIGHT violate the disparate impact theory. That is, if it looks like a test might be discriminatory, can an employer scrap it and start over again with a process that isn't discriminatory to anyone?"

Sure! As long as they do it BEFORE the test is given and its results are made known. It is NOT LEGAL to look at the results of such a test and make decisions based on the racial distribution of those results.

As you say, though, "the test was declared discriminatory as the result of a Title VII lawsuit" and "the test MIGHT be declared discriminatory IF there were a Title VII lawsuit" are different questions.

Posted by: DensityDuck | Jul 1, 2009 9:46:12 PM

Density Duck:

The Ricci Plaintiff's explicitly waived the "mixed motive" theory of race discrimination. Section 2000e-2(m) was thus irrelevant.

Posted by: JP | Jul 2, 2009 6:42:28 AM

..."plaintiffs," not "Plaintiff's"...

Posted by: JP | Jul 2, 2009 6:43:46 AM

Really? That was surprisingly stupid of them. 2000e-2(m) seems pretty clear to me.

You're right that it seems oddly ironic that acting to avoid a Title VII lawsuit is itself grounds for a Title VII lawsuit, but that's how the law is written. Title VII actually DENIES the hiring party the authority to make decisions of that sort; it requires that the matter be decided in court. It's illegal to say "we're going to re-do the test until we get the racial mix that we want"; that violates both the letter and the spirit of Title VII.

...or, at least, that's the argument that Ricci's lawyers ought to have been using. Instead they went all "anti-white conspiracy".

Posted by: DensityDuck | Jul 2, 2009 10:34:15 AM

Much of Dr. Zimmer's analysis seems true. But there are several points in some of the comments that I would like to comment on. First, the record of the case should be examined -- not the record that the Ricci Plaintiffs attached to their Supreme Court brief.

Yes, the Ricci Plaintiffs moved for summary judgment -- but they only asked for a jury trial in their motion for SJ. That's what they should get by summary judgment being granted, and both Alito and Ginsburg made clear the competing facts. You must prove disparate treatment.

Second, the Ricci Plaintiffs never asked for promotion in their complaint. How can you automatically get relief that you have not asked for and bypass the proof requirements in Title VII disparate treatment? Just as there clearly must be more proof of disparate impact for anyone to "win" (i.e., black firefighters showing the test was invalid -- and that door remains open), it also is wrong to not meet the requirements that a jury either find for or against disparate treatment discrimination. See Section 1981a on trials. There would also likely be a Seventh Amendment issue (working in reverse, I guess), would there not?

Third, eight testers in amicus briefs opined there were ample problems in the construction of the test. Not only were there hearings, but there also (in the full record) was a deposition of Chad Legel -- he even said under oath the city asked him to monkey with the exams and weighting (this is wrong for a tester to do), that there were probably better or equally valid testing methodologies never considered by the City.

Most importantly, the City stopped paying IOS (it was never paid the full amount of the contract) and IOS never provided a final validity report (also required by the contract, and also proper for any tester to do. Mr. Legel also did not have a PH.d. at the time. Mere test construction alone does not make a test "valid" and full adverse impact cannot be known until all of factors (including examination of the actual questions and administration, scoring) are examined. To date, the test itself has never been actually evaluated by any experts, as they were not made available to those at the hearing and no experts actually were hired by either side in the litigation itself. The questions remain. The entire record of the entire case is available via the 2nd Circuit and will be remanded back with the case eventually to the trial court.

Professor Zimmer -- is there, in your opinion, going to be automatic promotion when it was never prayed for and the McDonnell Douglas elements never met and found by a jury? Is it not, then, that the SJ that the Ricci "20" was granted is what they asked for on SJ -- a trial?

Thank you.

Posted by: Christy Bishop, Atty | Jul 3, 2009 8:26:33 AM

Post a comment