Disparate Treatment Discrimination – Don’t Get Caught By Surprise

The New Haven, Connecticut fire department made it a practice of administering civil service tests for all applicants into captain or lieutenant positions. The examination resulted in higher scores for white applicants than for minority applicants. Fearing a lawsuit based on disparate impact discrimination (an employment practice which appears neutral but has an unintended and unjustified adverse impact on a certain class of employees) the department decided not to implement or “certify” the exam results because none of the African American firefighters who took the exam had scored high enough to be considered for promotion. Ironically, a group of white and Hispanic firefighters who had scored well sued over a violation of their rights under Title VII, claiming that the city discriminated against them based on their race for not certifying the test results which would have led to their promotion.

The case made its way to the U.S. Supreme Court which held that an employer may not decline to certify results of an exam that would result in disproportionately more white applicants becoming eligible for promotion than minority applicants solely because it feared that certification of the results would lead to charges of racial discrimination.

In this case, the employer considered promotion qualifications and relevant experience in neutral ways. The employer also carefully ensured broad racial participation in the design and implementation of the test. Additionally, the process was open and fair. Related hearings produced no strong evidence of unlawful action by the employer. The employer was found to have participated in disparate treatment (intentionally discriminating against a certain class of protected employees) and was therefore not entitled to disregard the tests based solely on the racial disparity in the results.

What employers need to do:

  • Ensure that examinations and all other employment practices are job-related, consistent with business necessity, neutral, valid, and have less disparate impact than an available alternative employment practice
  • Understand the difficult interplay between disparate impact and disparate treatment discrimination
  • Seek appropriate advice and guidance with all employment policies that present some risk for claims of discrimination – even those that seem fair on the surface
  • Particularly in times of economic hardship, perform a adverse impact study before any reduction in force, downsizing, or other adverse action that will impact a group of employees
  • Contact Vantaggio HR to assist in verifying consistency legality of employment practices

To review this case, please visit: http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf.

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