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On the Legal Front: 
Fasten Your Seatbelts: Supreme Court to Hear Ricci v. Destefano

Eric Dunleavy
DCI Consulting

Art Gutman
Florida Institute of Technology

 
In Ricci v. Destefano (2006), District Court Judge Janet Bond Arterton upheld the right of refusal of the New Haven Civil Service Board (CSB) to certify promotional exams for firefighters to lieutenant and captain, thus preventing an adverse impact challenge by minority applicants.  A three-judge panel of the 2nd Circuit then issued a short per curium ruling on February 15, 2008, stating that Judge Arterton’s ruling was “well-reasoned” and that the CSB was “in an unfortunate position of having no good alternatives.”  Then, on June 9, 2008, the 2nd Circuit declined a full en banc review of Judge Arterton’s ruling in a narrow 7–6 ruling.  As documented by Sharf in the January 2009 issue of TIP, the six dissenters urged the Supreme Court to review Judge Arterton’s ruling.  More recently, the Supreme Court accepted and consolidated two writs of certiorari by the plaintiffs on January 9, 2009.  The deadlines for briefs are February 19, 2009 for petitioners (opposing the CSB) and March 19, 2009 for respondents (supporting the CSB).  A Supreme Court ruling is likely by late spring or early summer. 

Pro and con discussions of Ricci and related cases were made in the October 2007 issue of TIP by Sharf, who opposed Ricci, and Outtz, who endorsed it.  We will not debate the pros and cons.  Our goal below is to examine legal issues we think are central to this case and to discuss potential outcomes.  As a starting point, we believe that Ricci has its roots in Hayden v. Nassau County (1999), a prior 2nd Circuit ruling that was as controversial as Ricci.  In Hayden, Nassau County (New York) administered an exam to applicants for entry-level police officers.  Then, to reduce adverse impact, only part of the exam was scored.  For reasons described below, we believe that Hayden stands on solid legal footing.  However, the fate of Ricci is debatable. 

The Hayden Case

In 1997, the Department of Justice (DOJ) sued Nassau County for adverse impact on minorities and women of an entry-level police exam.  In 1982, the county and the DOJ entered into a consent degree in which it was agreed that an exam would be created that either produces no adverse impact or is valid “in accordance with Title VII and the Uniform Guidelines.”  Exams developed in 1983 and 1987 again resulted in adverse impact, and two new consent decrees were fashioned.  Then, in 1990, the DOJ and Nassau County jointly agreed to hire a technical design advisory committee (TADC) of experts to design and validate a new exam.

A 25-component exam was developed and administered to more than 25,000 applicants, and adverse impact analyses were conducted before any employment decisions were made.  The exam in its entirety had “severe” adverse impact.  The TADC then examined different configurations of the 25 components in an effort to find the most job-related exam with the least amount of adverse impact.  There was one configuration that eliminated adverse impact, but it was rejected for weakness on the job-relatedness criterion. The final configuration, which reduced but did not eliminate adverse impact, used only 9 of the 25 components.  This nine-component exam was then challenged by 68 unsuccessful candidates, mostly White. The plaintiffs sued via Sections 106 and 107 of the Civil Rights Act of 1991 (CRA-91), Title VII, and the Equal Protection Clause of the 14th Amendment.  The exam was upheld by Judge Jacob Mishler of the Eastern District Court of New York on all grounds, and Judge Mishler’s ruling was affirmed by a three-judge panel of the 2nd Circuit.

The Ricci Case

The promotional exams in Ricci were developed by an I-O consulting firm (we will call it “Firm-1”) in 2003.  Firm-1 based the exam on a job analysis questionnaire designed to identify critical job tasks and KSAs.  Had Ricci been a traditional adverse impact case (which it was not), the defense would be that the exams are content valid in accordance with the 2nd Circuit’s landmark ruling Guardians v. Civil Service (1980). Guardians established the following five criteria for content validity:

1. suitable job analysis
2. reasonable competence in test construction
3. test content related to job content
4. test content representative of job content
5. scoring systems selecting applicants that are better job performers

These criteria were subsequently adopted by other circuit courts (e.g., Gillespie v. Wisconsin, 1985; Police Officers v. City of Columbus, 1990; Brunet v. City of Columbus, 1995; Williams v. Ford Motors, 1999; Association of Mexican-American Educators v. California, 2000; and Bew v. Chicago, 2001), and more recently, were affirmed by the 2nd Circuit in Gulino v. New York State (2006).  Although the issue of content validity was not litigated in Ricci, there is no reason to believe that the 2nd Circuit would have rejected the exams developed by Firm-1 based on Guardians.

However, it is not clear that the exam would have satisfied the reasonable alternatives criterion.  Firm-1 was under significant constraints because of a collectively bargained agreement (CBA) with the firefighters’ union requiring written and oral exams, a specific weighting of these exams (written = 60% and oral = 40%), and a passing score of 70%.  The passing score was a lesser issue; there were substantially more passing scores than vacancies.  However, the 60–40 split between written and oral exams is an arbitrary union rule that could have been challenged under adverse impact rules. 

The projected results for promotion are depicted in the table below.  The New Haven City Charter mandates a “rule of three” for promotions, meaning each promotion decision must be made from the top three scores available for each decision.  There were seven vacancies for captain and nine for lieutenant.  Based on the “rule of three”, any among the top nine passing scores for captain and top 10 passing scores for lieutenant were eligible for promotion. To illustrate, there were 25 White applicants for captain, of whom 16 passed with a score of 70% or more, and 7 were among the top nine scores.  The bottom line, as depicted in the table, is that 7 Whites, 2 Hispanics, and 0 Blacks were eligible for promotion to captain, and 10 Whites and 0 Blacks or Hispanics were eligible for promotion to lieutenant.

_________________________________________
                   Captain Exam (7 Vacancies)
_________________________________________
                             Whites      Blacks     Hispanics
_________________________________________
Applicants                  25             8              8
Passing Score            16              3              3
Top 9 Scores               7              0              2

                 Lieutenant Exam (8 Vacancies)
_________________________________________
                              Whites      Blacks    Hispanics
_________________________________________
Applicants                   43           19            15
Passing Score              25            6              3
Top 10 Scores              10            0              0
_________________________________________
 

After five hearings, the five-member CSB voted 2–2 with one abstention (due to conflict of interest), and the exam was not certified.  There were several interesting developments during these hearings, most notably, the telephonic testimony of the CEO of a competing consulting firm (we will him “CEO-IO”).  CEO-IO testified that he finds “significantly and dramatically less adverse impact” in his exams, the 60%–40% breakdown favoring the written exam may have been responsible for the larger adverse impact produced by Firm-1, and an assessment center approach used by CEO-IO is a better alternative to the exams developed by Firm-1. Accordingly:

[A]n assessment center process, which is essentially an opportunity for candidates to demonstrate their knowledge of the...standard operating procedures, to demonstrate how they would address a particular problem as opposed to just verbally saying it or identifying the correct option on a written test. For example, there’s concepts of situation judgment tests that can be developed and designed, customized within organizations that demonstrate dramatically less adverse impacts...

However, there were problems with this testimony.  CEO-IO acknowledged he did not have the time to “study the test at length or in detail” and that he based his opinion entirely on statistics provided by the city.  He also acknowledged “he had not looked at specific statistics from previous promotional examinations in New Haven to compare their results with the 2003 exam results.”  There were other interesting developments during the hearings, both pro and con, but ultimately, the city attorney found the testimony of CEO-IO to be most compelling and urged the CSB to not certify either exam.

In the lawsuit that followed, 18 applicants (17 Whites and 1 Hispanic) claimed that the decision to not certify was based solely on race and that this is a disparate treatment violation under Title VII and a violation of the Equal Protection Clause of the 14th Amendment.  There were other lesser-included charges.  The crux of this case, however, focused on the 14th Amendment claims as connected to the 2nd Circuit’s ruling in Hayden.  There were two major connections.

First, quoting directly from Hayden, Judge Arterton ruled “the intent to remedy the disparate impact of [the tests] is not equivalent to an intent to discriminate against nonminority applicants.”  Second, she acknowledged that the decision to not certify was race conscious but, at the same time, ruled that it led to a race-neutral “result” in accordance with Hayden because all exam results were discarded and nobody was promoted. In other words, making no promotion decisions obviously produced no promotion decision variability and thus could not differentially affect a group intentionally or unintentionally.  Accordingly:

Thus, while the evidence shows that race was taken into account in the decision not to certify the test results, the result was race-neutral: all the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process to be considered for promotion. Indeed, there is a total absence of any evidence of discriminatory animus towards plaintiffs—under the reasoning of Hayden, 180 F.3d at 51, “nothing in our jurisprudence precludes the use of race-neutral means to improve racial and gender representation....[T]he intent to remedy the disparate impact of the prior exams is not equivalent to an intent to discriminate against non-minority applicants.”

In addition, Judge Arterton credited the city’s diversity defense for not using the promotional list because “promoting off of this list would undermine their goal of diversity in the fire department and would fail to develop managerial role models for aspiring firefighters.”

Diversity aside, the connection to Hayden was central to the 7–6 vote to deny the en banc ruling.  Essentially all 13 judges viewed Hayden as good law.  However, the seven judges voting against an en banc ruling viewed Ricci as being consistent with Hayden, whereas the six judges favoring an en banc review saw it differently.

Legal Issues Addressed in Hayden

As a starting point, it is important to recognize the obvious; everything about adverse impact in Title VII is race (or gender) conscious.  Accordingly, proof of adverse impact based on race (or gender) by plaintiffs requires defendants to prove that its cause is job related and consistent with business necessity.  Even so, plaintiffs may still argue for alternative selection tests or other devices with less or no adverse impact.  This latter requirement is written into the Uniform Guidelines on Employee Selection Procedures (or UGESP) as follows:

Consideration of suitable alternative selection procedures. Where two or more selection procedures are available which serve the user’s legitimate interest in efficient and trustworthy workmanship, and which are substantially equally valid for a given purpose, the user should use the procedure which has been demonstrated to have the lesser adverse impact. Accordingly, whenever a validity study is called for by these guidelines, the user should include, as a part of the validity study, an investigation of suitable alternative selection procedures and suitable alternative methods of using the selection procedure which have as little adverse impact as possible, to determine the appropriateness of using or validating them in accord with these guidelines.  [emphasis by authors]

If anything, this passage suggests it is a Title VII violation to not consider alternatives with less adverse impact during and whenever a validity study is called for.

The UGESP doctrine on alternatives is based on actual language imported from the Supreme Court’s ruling in Albemarle v. Moody (1975).  Furthermore, the ruling in Albemarle, as relates to alternatives with less adverse impact, was affirmed in every relevant Supreme Court ruling up to and including even Wards Cove v. Atonio (1989).  It was subsequently codified in CRA-91, making it illegal if “the complaining party makes the demonstration...with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.”

We note that Sharf (2007) argued that employers must first be made aware of alternatives with less adverse impact and then refuse to adopt these alternatives in order to violate Title VII.  However, we think this argument contradicts plain language in the UGESP requiring that alternatives be considered during a validation process, not afterwards.  Therefore, to interpret CRA-91 as Sharf does, we must assume that in some way, CRA-91 invalidates UGESP doctrine.  We will not dwell on this issue, other than to question the potential disconnect. Furthermore, it is irrelevant to Hayden, as there were no issues related to “awareness” and “refusal to adopt” in this case.

There were four major claims by the Hayden plaintiffs, each of which was rejected by the 2nd Circuit.  The first claim relates to Section 106 of CRA-91 (the so-called “race norming” provision), which states:

It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin.

The 2nd Circuit rejected this claim on grounds that the “exam was scored in the same manner for all applicants” and “no differential cutoffs were employed.”

The second claim relates to Section 107 of CRA-91, which states:

Except as otherwise provided in this title, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

This provision relates to so-called “mixed-motive” disparate treatment cases such as Price Waterhouse v. Hopkins (1989).  In the prototypical mixed-motive case, a plaintiff with strong evidence of an illegal motive (e.g., derogatory remarks by supervisors) forces a defendant to prove that a challenged employment decision (e.g., failure to promote) was made legally, irrespective of the alleged illegal motive.  The 2nd Circuit rejected this claim, ruling that Hayden was not a mixed-motive case.  Accordingly:

That section was plainly included to benefit plaintiffs in “mixed motive” employment discrimination cases by confirming that race need not be the sole motivating factor for an adverse employment action. This, however, is not a “mixed motive” case.

The third claim was adverse impact against White applicants because cognitive components were eliminated from the original exam. The 2nd Circuit rejected this claim, ruling that the plaintiffs “suffered no discriminatory impact in the administration or scoring of the facially neutral examination” because “on average, they scored higher than Black applicants” on the reconfigured exam. 

The fourth claim was that the reconfigured exam violated the Equal Protection Clause of the 14th Amendment because it was designed and scored “in a race-conscious way, with the intent of solely or primarily benefiting one racial group to the detriment of other racial or ethnic groups.” The 2nd Circuit disagreed, ruling “the exam was not scored differently on the basis of a candidate’s ethnicity or gender,” no “differential cut-off points used for applicants of different races or sexes” were used, and a “racial motive” is not a “synonym for a constitutional violation.” The latter rulings speak to the difference between direct attempts to reduce adverse impact as compared to “select affirmative action tools, such as quota systems, set-aside programs, and differential scoring cutoffs, which utilize express racial classifications and which prevent nonminorities from competing for specific slots or contracts.”

We do not endorse Hayden as an example of good I-O practice.  Indeed, but for Title VII rules and the power of a consent decree, it is unlikely that any seasoned I-O practitioner would engage in the kind of large-scale component matching used by Nassau County.  That said, the Nassau County’s central motive was to find alternatives with less adverse impact, a motive firmly supported by statutory law (CRA-91), regulatory law (the UGESP), and Supreme Court precedents (Albemarle, Wards Cove, and others). In addition, Hayden was essentially accepted as good law by all 13 2nd Circuit judges participating in the en banc argument.  Thus, the central issue in front of the Supreme Court is likely to be whether and to what extent Ricci is consistent with Hayden.

Four Questions for the Supreme Court

The six minority 2nd Circuit judges were led by Judge Jose A. Cabranes.  As documented by Sharf (2009), Judge Cabranes opined that the Supreme Court should address the following four questions. 

1. Does the Equal Protection Clause prohibit a municipal employer from discarding examination results on the ground that “too many” applicants of one race received high scores and in the hope that a future test would yield more high-scoring applicants of other races?

2. Does such a practice constitute an unconstitutional racial quota or set-aside?

3. Should the burden-shifting framework applicable to claims of pretextual discrimination ever apply to a claim of explicit race-based discrimination in violation of Title VII?

4. If a municipal employer claims that a race-based action was undertaken in order to comply with Title VII, what showing must the employer make to substantiate that claim?

These are not independent questions.  Indeed, each one presumes, directly or indirectly, that the motive in Ricci was race-based promotion, not alternatives to reduce adverse impact as in Hayden.  

1. Discarding Exam Results
Question 1 speaks directly to differences in motives in Ricci and Hayden.  As stated by Judge Cabranes:

Neutral administration and scoring—even against the backdrop of race-conscious design of an employment examination, see Hayden v. County of Nassau, 180 F.3d 42, 50 (2d Cir. 1999)—is one thing. But neutral administration and scoring that is followed by race-based treatment of examination results is surely something else entirely.  Where, as here, examination results are disregarded on the ground that too many candidates of one race qualified for promotion on the basis of those results, the fact of neutral administration and scoring may not necessarily immunize defendants from the claims of civil rights violations brought by plaintiffs. 

Thus, although the motive ascribed to Hayden is to design an exam with minimal adverse impact and then score it irrespective of race, the motive ascribed to Ricci is to continue to seek alternatives after the fact until minorities are eligible for promotion.

Assuming this viewpoint is correct, the burden on New Haven would likely reduce to the diversity argument evaluated in Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003),1 and applied in Petit v. City of Chicago (2003). In Grutter, the Supreme Court upheld the University of Michigan’s law school diversity plan in accordance with strict scrutiny criteria, ruling that (a) diversity is a compelling government interest, and that (b) a law school admission plan was narrowly tailored to that interest.  In Gratz, the Supreme Court struck down the University of Michigan’s undergraduate admissions plan on grounds that it was not narrowly tailored. In Petit, the 7th Circuit read Grutter as a basis for supporting outrank promotion to police sergeant of 56 minority applicants (out of 458 total vacancies). 

1 Issues related to the Grutter and Gratz rulings are discussed in On The Legal Front columns in the October 2002, January 2003, April 2003, and October 2003 issues of TIP.
2 The Petit case and other relevant pre-Grutter cases on diversity in police forces are discussed in the On The Legal Front column in the April 2004 issue of TIP.

Applying strict scrutiny to Ricci, New Haven would have to prove both prongs of the analysis, that (a) a racially diverse fire department constitutes a compelling government interest; and (b) it is a narrowly tailored solution to, in effect, certify only those tests results that guarantee minority promotions whenever there are multiple vacancies. This is a tough sell based on either prong.

Regarding Prong A (on compelling interest), the argument in Petit was supported in pre-Grutter diversity rulings in Detroit Police v. Young (1979) and Talbert v. City of Richmond (1981).  Both cases featured race-based police promotions, and both rulings, favorable to municipalities, were based on Justice Powell’s ruling in Regents v. Bakke (1978)3 and a federal commission report written in the wake of the Detroit riots in 1968. The commission report emphasized that Black and White civilians need to see Black and White police officers acting in harmony, particularly in times of racial tension.  An analogous ruling was rendered in Wittmer v. Peters (1996) on race-based promotion in a boot camp in which the majority of inmates were Black juveniles.  It is questionable, however, that the arguments favoring police also favor firefighters.  Indeed, at least one circuit court has ruled that diversity among firefighters is not a compelling government interest (Lomack v. City of Newark, 2006)4

3 As discussed in the On The Legal Front columns cited under Footnote 1, Bakke was a diversity case, and a key question in Grutter and Gratz, answered in the affirmative, was whether Powell’s Bakke ruling is good law.  Only one Justice (Thomas) suggested that Bakke is not good law.
4 Lomack is briefly discussed in the On The Legal Front column in the October 2007 issue of TIP, which featured the Supreme Court’s 2007 ruling in Parents v. Seattle School District (2007), a diversity case that passed on compelling interest but failed on narrow tailoring.  In Lomack, the newly elected mayor of Newark wanted to create a “rainbow” by diversifying each of 108 firehouses. 

Regarding Prong B (on narrow tailoring), the criterion is that the compelling interest being addressed must be the least restrictive solution, and it can only be proven if Prong A is answered in the affirmative.  The problem for New Haven is that, on its face, a process that could in theory continue indefinitely is not likely a narrowly tailored solution because of the implied delay in the promotion process. Thus, there may be other more narrowly tailored solutions that were not considered.  On the other hand, New Haven could argue that the reason for any delay is the union CBA, which on its face requires an arbitrary 60 to 40 weighting of written to oral exams.

2. Implied Quotas or Set-Asides
Question 2 is an extension of Question 1.  As framed by Judge Cabranes, the question reduces to whether it is tantamount to a “racial quota” if employers are permitted to “reject the results of an employment examination whenever those results failed to yield a desired racial outcome.”  Judge Cabranes acknowledged that there is no “easy answer” to this question but opined that the Supreme Court should determine whether the appropriate precedent is Hayden or prior Supreme Court rulings in City of Richmond v. Croson (1989) and Adarand v. Pena (1995).  Accordingly: 

Croson and Adarand establish that racial quotas are impermissible under the Constitution absent specific findings of past discrimination that are not in the record here. Whether Croson and Adarand preclude the actions challenged in this case, or whether Hayden can fairly be read to compel judgment in defendants’ favor as a matter of law, are questions that admit no easy answer.

Croson (set aside of municipal funds for minority business enterprises) and Adarand (incentives for federal contractors subcontracting with disadvantaged business enterprises) undoubtedly involved real quotas.5  Whether New Haven had an “implied” quota is not clear.  Nor, in our opinion, is it that relevant because, assuming there is such a thing as an “implied” quota, it would face the same strict scrutiny challenge and defense as discussed in connection with Question 1.  Therefore, whatever answer is applied to Question 1 applies to Question 2 regardless of how a quota is defined.

5 In Croson, the City of Richmond lost on both prongs of the strict scrutiny analysis.  In Adarand, the Supreme Court remanded for retrial, and the Federal DOT made enough changes to the program in ensuring years to prevail on both prongs at the level of the 10th Circuit (Adarand v. Slater, 2000).  The Supreme Court never again reviewed the DOT set-aside.
 
3. Title VII Framework
Judge Arterton evaluated the Title VII disparate treatment claim under rules established in McDonnell Douglas v. Green (1973).  Here, the defendant articulates (without having to prove) a legal reason the decision to not certify the test (e.g., adhering to Title VII adverse impact rules), and the plaintiff must affirmatively prove that the articulation offered is a pretext for illegal discrimination.  In Question 3, Judge Cabranes opened the possibility that “impermissible motive” (i.e., race-based promotion) calls for a mixed-motive analysis established by Price Waterhouse v. Hopkins (1989) and codified in Section 107 of CRA-91.  Accordingly:

If the plaintiff convinces the factfinder that the illegitimate factor played such a role, the employee has proved that the decision was made at least in part because of the illegitimate factor. At this point the employee is entitled to succeed subject only to the employer’s opportunity to prove its affirmative defense; that is, that it would have reached the same decision as to the employee’s employment even in the absence of the impermissible factor.

There are two good reasons for believing that Ricci is not a valid mixed-motive case.  First, in the run of mixed-motive cases, the actions connected to the illegal and legal motive are always separable.  For example, in Hopkins, the alleged illegal motive related to gender-based derogatory remarks and the alleged legal motive related to a decision to not promote.  In a more recent Supreme Court mixed-motive case (Desert Palace v. Costa, 2003), the alleged illegal motive related to mistreatment of a woman in a warehouse and the alleged legal motive related to whether the decision to terminate her was made independently of that motive.  In Ricci, there are no separable motives.  Rather, the employer would have to prove it had a permissible reason to engage in what the court has already decided is an impermissible action.  This reads like a tautology.

Second, no so-called “reverse discrimination” case has ever been decided under mixed-motive rules.  Indeed, the rules for Title VII and the 14th Amendment are perfectly parallel in such cases.  Thus, where the 14th Amendment calls for a “compelling government interest,” Title VII calls for evidence of an egregious violation (e.g., past discrimination) or a legitimate operational need (e.g., diversity).  And where the 14th Amendment calls for a “narrowly tailored” solution, Title VII calls for temporary solutions that do not trammel the rights of nonminorities.  Treating Ricci with traditional strict scrutiny rules under the 14th Amendment and mixed-motive rules under Title VII would create a potentially winning case under the 14th Amendment that is doomed to failure under Title VII.  This is particularly untenable for a Supreme Court that has consistently used 14th Amendment and Title VII language interchangeably in its reverse discrimination rulings.

4. Substantiating Race-Based Action Under Title VII
Questions 1 to 3 speak to specific issues in Ricci.  Question 4 speaks to the more general issue of what is acceptable and unacceptable in efforts to reduce adverse impact.  Therefore, knowing only if Ricci is good or bad law gives us nothing more than a single example of what to do (or not to do).  We need more. 

For example, in City of Richmond v. Croson (1989), the Supreme Court did more than simply strike down a municipal set-aside; it also established specific rules for passing the strict scrutiny tests that have been applied in other situations (e.g., Adarand v. Slater, 2000).  A similar approach would provide much needed information on how to legally deal with alternatives with less or no adverse impact.

It has to be frustrating for practitioners who develop and validate hiring or promotion tests (or other selection devices) for police or firefighters knowing that regardless of the outcome, the municipality will be sued.6  Minorities will sue if there is adverse impact, and nonminorities will challenge any efforts to reduce adverse impact.  An approach to Ricci that parallels the approach in Croson would help establish rules on which municipalities can rely.  

6 A case study illustrating the trials and tribulations of test makers who develop and validate police and firefighter tests for municipalities is provided by Barrett, Doverspike & Young (in press).

Conclusion

As this article has demonstrated, Ricci is a complex case. It is difficult to think of a recent EEO Supreme Court case that requires the integration of multiple statutes, different theories of discrimination, various EEO doctrines, and assorted stakeholder interests.  At the very least, the Ricci ruling should partially clarify the following section of UGESP: “A user may choose to utilize alternative selection procedures in order to eliminate adverse impact or as part of an affirmative action program....Such alternative procedures should eliminate the adverse impact in the total selection process, should be lawful and should be as job related as possible.” This ruling will hopefully establish whether the Ricci practice as a reasonable alternative is lawful, and as such, whether making no employment decision is in fact making a decision in this context (and whether that decision can have intent to discriminate).   

I-O psychologists involved in personnel selection are aware that the issue of reasonable alternatives has become a legal defensibility “gray area,” little specific guidance is available via technical authorities, and the burden of demonstrating an equally valid and less adverse alternative is just beginning to emerge in case law. Unfortunately, the Ricci ruling isn’t going to clear up all of the ambiguities associated with the reasonable alternatives prong, primarily because Ricci is not a traditional adverse impact case.

For example, Ricci won’t clarify standards for what constitutes an “equally valid” alternative. Is a correlation coefficient of equal magnitude predicting the same criterion something that is equally valid? Could this correlation stem from measuring a different construct, simply adjusting a cut score of the current test down and correlating the decisions with performance, or changing the method of measurement? What about predicting other criteria? In addition, how could the notion of equal validity apply to content-oriented and other validity strategies? Could central tendency measures of subject matter expert ratings actually be used to demonstrate “equal validity”? Certainly some strategies are more plausible than others, at least from a scientific perspective.      

In addition, Ricci probably won’t clarify what the complaining party burden is to demonstrate a reasonable alternative. For example, is the complaining party required to conduct research to “demonstrate” the existence of a reasonable alternative as the above CRA-91 language may suggest? This would seem to parallel the employer burden of demonstrating job relatedness after a selection procedure is identified as the cause of adverse impact. Could the complaining party simply identify correlations and statistics in the meta-analytic literature as alternatives, or look to what a test developer has done in the past for other clients as alternatives? Again, some strategies are more reasonable than others from a scientific perspective, yet both scientific and socially derived value judgments play a role in this context. Although Ricci won’t clarify all of these issues, usually no single ruling does. We hope that Ricci is the start of a body of case law that provides legal defensibility standards around what is and what is not a reasonable alternative in the selection context.

References

     Barrett, G.V., Doverspike, D., & Young, C.M. (in press). The special case of public sector police and fire selection. In J. C. Scott & D. H. Reynolds, (Eds.). The handbook of organizational assessment: Selecting and developing organizational talent. Alexandria, VA: Jossey-Bass/Pfeiffer.
     Outtz, James, L. (2007). Less adverse alternatives: Making progress and avoiding red herrings.  The Industrial-Organizational Psychologist, 45(2), 23–27.
     Scharf, James, C. (2007). Slippery slope of “alternatives” altering the topography of employment testing?  The Industrial-Organizational Psychologist, 45(2), 13–19.
     Scharf, James, C. (2009). Supreme Court petitioned to hear testing case involving Title VII “alternatives” and the Constitution’s equal protection clause. The Industrial-Organizational Psychologist, 46(3), 29–32.

Cases Cited

     Adarand v. Pena (1995) 515 US 200.
     Adarand v. Slater (CA10 2000) 169 F.3d 1292.
     Albermarle Paper Co. v. Moody (1975) 422 US 405.
     Association of Mexican American Educators v. California (2000 CA9) 195 F.3d 465.
     Bew v. City of Chicago (2001 CA7) 252 F.3d 891.
     Brunet v. City of Columbus (CA6 1995) 58 F.2d 251.
     City of Richmond v. Croson (1989) 488 US 469.
     Desert Palace v. Costa (2003) 539 US 90.
     Detroit Police Officers Association v. Young (1979 CA6) 999 F.
     Gillespie v. State of Wisconsin (CA7 1985) 771 F.2d 1035.
     Gratz v. Bollinger (2003) 539 US 244.
     Grutter v. Bollinger (2003) 539 US 306.
     Guardians v. Civil Service (CA 21980) 630 F.2d 79.
     Gulino v. State Education Department (CA2 2006) 461 F.3d 134.
     Hayden v. Nassau County (1999 CA2) 180 F.3d 42.
     Lomack v. City of Newark (2006 CA3) 463 F/3d 303.
     McDonnell-Douglas v. Green (1973) 411 US 792.
     Parents Involved in Cmty. Schs. v. Seattle School Dist. No.1 (2007) 127 S. Ct. 2738.
     Petit v. City of Chicago (CA7 2003) 352 F.3d 1111.
     Police Officers for Equal Rights v. City of Columbus (CA6 1990) 916 F.2d 1092.
     Price Waterhouse v. Hopkins (1989) 490 US 228.
     Regents of Univ. of California v. Bakke (1978) 438 US 265.
     Ricci v. Destefano (2006) Civil No. 3:04cv1109 (JBA).
     Ricci v. Destefano (CA2 2008) 30 F.3d. 88.
     Ricci v. Destefano (CA2 2008) 530 F.3d. 87.
     Talbert v. City of Richmond (CA4 1981) 648 F.3d 925.
     Wards Cove Packing Company v. Atonio (1989) 490 US 642.
     Williams v. Ford Motor Company (1999 CA6) 187 F.3d 533.
     Wittmer v. Peters (CA7 1996) 87F.3d 916.