Disparate impact

Since judge Sonia Sotomayor was nominated to the Supreme Court by President Obama, one case in particular has captured people’s attention — Ricci v. New Haven. Judge Sotomayor joined a 7-6 majority in ruling in favor of the city of New Haven at the appellate level. Yesterday the Supreme Court ruled 5-4 in favor of the firefighters.

The case is easy to describe. New Haven, Connecticut created a test to determine which firefighters should be promoted. Few minority candidates scored high enough on the test to be eligible for promotion, and New Haven declined to certify the test results. Rather than promoting anyone, the city decided to come up with an alternative test. This seems patently unfair, but things become more complicated when the applicable laws are taken into account.

The city of New Haven decertified the test results because they felt accepting the results would expose them to legal liability under Title VII of the Civil Rights Act of 1964. That law forbids any hiring standards that have a disparate impact on people of different races. In this case the suit was brought under the “disparate treatment” part of the statute, which outlaws making hiring or promotion decisions based on race. The argument was that by decertifying the test results, the city was using race as a criteria for promotion.

Yesterday I read all of the opinions in the case, and if you’re really interested, you should read them as well. The statute in question is easy to understand, and it’s interesting to see how the justices on both sides interpret it.

The way Title VII works is easy to explain with a hypothetical. Let’s say I create a test for employment, and the entire test is written in Chinese. I administer the test to applicants and find that all of the applicants who are not Chinese fail to pass the test. Under the law, this would qualify as “disparate impact” — it favors Chinese applicants over those who are not Chinese. So I am required to evaluate whether business necessity justifies presenting the test in Chinese. If the test was for people who would be teaching the Chinese language, the disparate impact would most likely be justified. If the test was for would-be accountants, then it would most likely not be.

The example in the New Haven case is less absurd than my example, but the thinking was the same. After presenting the test, the results suggested a disparate impact. The reasons for the disparate impact were examined and there was reason to believe a better approach could be devised that would have created less disparate impact, so the city voted not to certify the results.

In reading all of the opinions, I think that a vote that certified the results would have been justified as well. The city took a number of measures to insure that the original test was neutral. However, it seems certain that had the test been certified, a suit would have been filed against the city under the disparate impact section of the statute.

The core disagreement between the majority and minority on the Supreme Court is whether the vote not to certify the results of the tests constitutes “disparate treatment” under Title VII. The majority argues that the city made an intentional decision to discriminate based on race in its efforts to avoid unintentional discrimination, and that absent “strong evidence” of disparate impact, such discrimination is illegal. However, I found these two sentences from the dissent persuasive:

In codifying the Griggs and Albemarle instructions, Congress declared unambiguously that selection criteria operating to the disadvantage of minority group members can be retained only if justified by business necessity. In keeping with Congress’ design, employers who reject such criteria due to reasonable doubts about their reliability can hardly be held to have engaged in discrimination “because of” race.

Here’s how the majority opinion describes Title VII:

The Civil Rights Act of 1964 did not include an express prohibition on policies or practices that produce a dispa- rate impact. But in Griggs v. Duke Power Co., 401 U. S. 424 (1971), the Court interpreted the Act to prohibit, in some cases, employers’ facially neutral practices that, in fact, are “discriminatory in operation.” Id., at 431. The Griggs Court stated that the “touchstone” for disparate- impact liability is the lack of “business necessity”: “If an employment practice which operates to exclude [minori- ties] cannot be shown to be related to job performance, the practice is prohibited.”

This prohibition was added to the text of the law by Congress in 1991. How does one tell if a “facially neutral” practice is discriminatory in operation? By looking at the results. If the results indicate an impact, the next step is to evaluate whether another process would lead to less disparate impact. That’s the procedure New Haven followed.

As for the practical effects of the case, the disputed test was administered in 2003. I’m curious to know what kind of testing system the city of New Haven now uses in evaluating which firefighters should be considered for promotion.

For more on the case, see this discussion at Slate. I hadn’t read it when I wrote up my opinions on the case.