White Firemen Prevail at USSCt;
The end of “Reverse Discrimination”?
Commentators unclear about what
action to take in light of decision
Testing, already suspect, suffers another
Blow as non-predictor of performance
As has been widely reported, the U.S. Supreme Court has in effect invalidated the refusal of employers to implement test scores that have an adverse impact on minorities, especially, in the case at hand, African-Americans.
HR gurus for years have been tap dancing around the inherent contradiction in terms of an employer declaring itself an “affirmative action employer” but discriminating against those outside the protection of the affirmative action side of discrimination law.
Traditionally the EEOC and the Illinois Department of Human Rights have made no distinction between charges filed by members of a “protected class,” e.g., Females, Blacks, and Hispanics - and those outside the class (e.g., Males, Whites, and non-Hispanics), But the courts have imposed heavier burdens on the Males, Whites, and non-Hispanics. In “reverse” cases the Seventh Circuit has declared, somewhat cryptically, that an extra modicum of proof must be shown to keep such a case in court.
Meanwhile, employers who practice affirmative action have had to wrestle with the dilemma of making personnel moves to meet goals and timetables – or instead defer the action because of the risk of a discrimination charge from the Male, White, or non-Hispanic who was passed over.
The U.S. Supreme Court has now ruled that the New Haven firefighters, who were White, were unfairly denied promotions because of their race. The New Haven fire department gave a promotions exam, then withdrew the exam and its results out of concern that the examination had an adverse impact on minorities. Ricci v DeStefano, ___ U.S. ___, June 29, 2009.
Ricci raises several questions, but for now we identify only two:
· Are promotion tests accurate predictors of anything? If they are not, why use them? The Court almost nonchalantly suggested that they matter, and that their impact is no reason to ignore the scores of the examinations, but this same court has repeatedly held that selection devices that are not reasonable job-related but that have an adverse impact violate Title VII. In other words, Ricci, beyond the “fear of litigation” test, leaves employers up the testing river without a decent paddle.
· Are HR actions that lean in the direction of diversity potentially illegal? Suppose Black employee A and White employee B meet the basic requirements for promotion, but B also possesses other important quanta of experience that will count in the position in question. But HR goes with A because of the need for diversity (and to avoid concerns that the department has never had a Black supervisor); does Ricci give B a stronger case in court if he challenges A’s promotion over him? If diversity is no more of a defense than fear of litigation, the answer must be “yes.”
What EEOC and the courts do with this decision in the world of tomorrow will be critical to the personnel administration of both public and private employers.