Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

According to the FAQs, Ricci does not change a contractor’s affirmative action obligations, nor its obligation to comply with Uniform Guidelines on Employee Selection Procedures (UGESP) when using a test as part of its selection process. If such a test shows that it would have a disparate impact on a protected class, then the test must be validated for the job at issue. Additionally, the contractor is required to investigate alternative selection procedures that would have a lesser impact on the particular race, ethnic group, or gender.

The FAQs also explain that “to comply with its nondiscrimination obligations, a contractor must examine its tests and other selection procedures to identify whether there are any problem areas in terms of adverse impact on a particular race, ethnic group, or gender, and to prevent prohibited discrimination from occurring.” The OFCCP advises that contractors that are proactive in assessing their testing procedures are “more likely to avoid problems and successfully defend against any claim of disparate impact.” The OFCCP also suggests that it may be permissible to “pre-test” the use of an actual test by determine whether there is adverse impact. So long as results are not disclosed to candidates or hiring officials, the company can adjust the test or seek reasonable alternatives before using the procedure to make actual selection decisions.

As for how the OFCCP will address an allegation of discrimination, the FAQs explain that the agency will use established complaint procedures to investigate any class complaint from applicants or employees who believe that they were discriminated against when a contractor refused to use the results of a selection procedure. Additionally, “[w]here the contractor defends its action by asserting that using the selection procedure could result in liability for an unlawful adverse impact based on race, ethnicity, or gender, OFCCP will evaluate whether, as prescribed by Ricci, there is a strong basis in evidence for the contractor's claim.”

Discrimination in the Workplace

The U.S. Supreme Court held in Ricci v. DeStefano that the City of New Haven’s failure to certify test results that would have disqualified African American firefighters from receiving promotions was discriminatory against the white and Hispanic test takers who received qualifying scores and was therefore a violation of Title VII of the Civil Rights Act.

Meanwhile, Rep. George Miller (D-CA) announced that the House Education and Labor Committee will hold a hearing on the Supreme Court’s opinion in Gross v. FBL Financial Services. In this case, the Supreme Court set the evidentiary bar higher for a plaintiff bringing a mixed-motive age discrimination claim under the Age Discrimination in Employment Act (ADEA).

Immigration

The U.S. Immigration and Customs Enforcement (ICE) issued Notices of Inspection (“NOIs”) to more than 600 businesses as part of its new audit initiative.
 

Background

In 2003, the City of New Haven, Connecticut issued promotion-qualifying exams to 118 firefighters, as required by union contract. After certifying the test results, the City – pursuant to a municipal regulation – was to promote from the group receiving the top three scores. The City decided against certifying the test scores, however, after it was determined that no African American and only two Hispanic applicants qualified for an immediate promotion. The rationale for failing to certify the results was that the City would subject itself to claims of disparate impact race discrimination under Title VII of the Civil Rights Act. The 17 white and two Hispanic firefighters who comprised the pool of applicants earning the three highest exam scores – and thus would have been among those eligible to receive promotions had the results been certified – filed suit. These plaintiffs argued that the City’s failure to certify the results violated Title VII’s prohibition on racially-based disparate treatment, as well as the Constitution’s Equal Protection clause. The district court granted the City’s motion for summary judgment, finding that the City lawfully acted to insulate itself from charges of disparate impact discrimination. On appeal, a three-judge panel of the U.S. Court of Appeals for the Second Circuit affirmed the lower court’s decision. Judge Sonia Sotomayor – President Obama’s pick to replace Justice David Souter on the U.S. Supreme Court – was a member of that panel. The Second Circuit subsequently voted 7-6 to deny a rehearing en banc. In a 5-4 decision, the U.S. Supreme Court reversed and remanded.

Reasoning

Title VII of the Civil Rights Act prohibits both direct discrimination (disparate treatment) and in certain circumstances indirect discrimination (disparate impact). In the second scenario, an employer’s facially neutral act that has a disproportionate adverse effect on members of a protected class can be deemed discriminatory unless the employer can show that the action causing the disparate impact was job-related and consistent with business necessity. If such a showing is made, an employee can argue that the employer can use alternative means of achieving the same ends that will have less of a discriminatory impact. In the instant case, the City argued that its intent to avoid a disparate impact claim was a justifiable reason for throwing out the test results, even though doing so resulted in an act of “reverse” discrimination against the white and Hispanic applicants. The Supreme Court examined the interplay between the disparate treatment and impact language in Title VII, which makes it unlawful for employers to use employment practices that “that are fair in form, but discriminatory in operation,” while at the same time prohibits employers from taking adverse employment actions “because of” race. In reconciling these Title VII provisions, the Court held that the appropriate standard to use is the “strong basis in evidence standard” used in the context of Constitutional challenges to government actions to remedy past acts of discrimination. In essence, before engaging in an act for the purpose of avoiding or remedying an unintentional disparate impact on a protected class that would in turn discriminate against another group of employees on the basis of race, the employer “must have a strong basis in evidence” to believe it will be subject to disparate impact liability. In the instant case, the Court concluded that the City’s threshold showing of a significant statistical disparity in test results without more is insufficient to meet this “strong basis in evidence” standard. The qualifying exams were job-related and consistent with business necessity, and the City did not show that less-discriminatory alternatives were available that it refused to adopt. Fear of litigation alone could not save the City’s claim. The practical effect of this case for employers is that using qualifying exams has now become less legally precarious.

Justice Kennedy delivered this opinion. 

For more information on this decision and its implications, see Littler's ASAP:  Ricci v. DeStefano: Talk About a Rock and a Hard Place: Employers Required to Pick Between Disparate Treatment and Disparate Impact Claims  by:  Dionysia Johnson-Massie, Holly M. Robbins, Grady B. Murdock, and Cindy-Ann L. Thomas.