Less Adverse Alternatives: Making Progress and Avoiding Red Herrings
James L. Outtz
Outtz and Associates
If an employer meets its burden of demonstrating business necessity in a Title VII disparate impact case, the plaintiff may still prevail if it can be established that there is another selection procedure that is equally valid and would have less adverse impact. This particular strategy is becoming more frequent in adverse impact cases. When this strategy is employed, the court must sort through a number of difficult issues: what constitutes “equal” validity and whether the projected reduction in adverse impact is based on sound evidence. Three recent cases are presented below that exemplify the increasing prominence of the “less adverse alternatives” strategy and the factors that appear to influence whether it is successful.
Context
The concept of less adverse alternatives was first introduced in the Supreme Court case of Albemarle Paper Company v. Moody. In this case, the Supreme Court ruled that even if a defendant shows that an employment practice can be justified on the grounds of job relatedness, the plaintiff can still prevail by showing that (a) there is an equally valid alternative that has less adverse impact and (b) the defendant refuses to use it (Gatewood &Field, 1994) . If the case proceeds to this stage, the employer either (a) was not aware of an available alternative and should have been (according to plaintiff) or (b) was aware of an alternative but incorrectly asserts (again according to plaintiff) that it did not meet both criteria of equal validity and less adverse impact. When the strategy of a less adverse alternative is introduced by plaintiff, the defendant can address on substantive grounds or, if that is not an option, resort to presenting red herrings in an attempt to distract attention away from a possibly discriminatory practice. One red herring that seems particularly appealing is to describe the less adverse alternative using inflammatory terms such as racial norming or quotas. This may be designed to distract attention from a defense that is pretextual.
Determining whether plaintiff has met its burden in demonstrating a less adverse alternative presents difficult issues for the court. Several recent cases indicate however that courts are up to the challenge.
Marilyn Johnson, et al. v. City of Memphis (2006)
In this case, plaintiffs were African-American officers in the Memphis Police Department who sued the city of Memphis on the grounds that they were denied promotions to the rank of sergeant. The three cases challenging the promotion procedures of the Memphis Police Department were consolidated into the Johnson case.
This case demonstrates some of the factors courts use in deciding whether plaintiff has met the burden of proof. The first is “context.” The court seems to weigh the employer’s history in determining whether plaintiffs’ less adverse alternative is reasonable. As an example, in deciding whether the city of Memphis should or could have implemented a less adverse alternative, the court considered the city’s prior posture with regard to equal employment opportunity in the police department. The court stated:
Although the City has invariably denied engaging in unlawful discrimination, it has admitted that certain of its past practices may have given rise to an inference of such conduct. In settlement of the various suits against it, the City has entered into a series of court-approved consent decrees establishing practices and procedures “to insure that blacks and women are not placed at a disadvantage by the hiring, promotion and transfer policies of the City and that disadvantage to blacks and women which may have resulted from past discrimination is remedied so that equal employment opportunities will be provided to all. (Pl.’s Trial Ex. 55, United States v. City of Memphis, C-74-286, Amended Consent Decree 2.)
In a 1979 consent decree entered into with the Afro American Police Association, the City admitted that “historically blacks have been excluded from or limited in hiring and promotional opportunities within its police department.” (Pl.’s Trial Ex. 57, Stipulations of Facts 1, 1.) The City further admitted that its promotion examinations had not been prepared and the content of the oral interview was not developed on the basis of a professionally acceptable job analysis of the officer rank tested for. The city has conducted no study showing those tests, the oral board evaluation or the promotional selection process as a whole, to be valid selection devices as required by Title VII of the Civil Rights Act of 1964, as amended, and the Guidelines issued thereunder.
In spite of the City’s oft-repeated promises to institute properly validated promotion tests, the City continued to administer tests which were not validated as to job-relatedness and that resulted in adverse impact on African Americans. In a 1994 decision, the Sixth Circuit Court of Appeals noted that “incredibly, the City continues to make police and fire department promotions according to procedures that have not been validated.” Aiken v. City of Memphis, 37 F.3d 1155, 1164 (6th Cir. 1994).
Clearly the court determined that the city of Memphis had been in violation of Title II for an extended period of time with regard to hiring and promotion practices in its police department. This conclusion was based on sound legal evidence. In 1996 the city of Memphis developed what the court described as “its first validated” officer promotion process. The process was developed by an I-O psychologist under the oversight of another I-O psychologist retained as a consultant by the United States Justice Department. The process consisted of four components weighted as follows: performance test, 50%; written test, 20%; performance evaluation, 20%; and seniority, 10%. Two aspects of the 1996 process are noteworthy. First, unlike previous procedures, the process was not challenged as to its validity or adverse impact. Second the process was challenged however by the police union on the grounds that the union was not consulted with regard to its development. The latter point indicates the role that labor unions sometimes play as stakeholders in selection practices. The union’s grievance was rejected. The fact that the 1996 process withstood scrutiny is noteworthy because it set the foundation for a less adverse alternative. Thus, the court would be faced with the question of why the city of Memphis could not have continued with this or similar alternatives, a very significant contextual issue.
The city of Memphis introduced a new process in 2000 that deviated from the one used successfully in 1996. In new process, the written text was used as an initial hurdle. Although this change resulted in some adverse impact, it was not severe in that the four-fifths ratio for African Americans was .77. A greater concern however was the fact that part of the examination was compromised and had to be thrown out. The remaining components of the process were then given greater weight. The city ultimately conceded that the 2000 process was not valid. An I-O psychologist was retained in 2002 to develop another process.
The 2002 process was based on a thorough job analysis and designed to meet professional and legal standards. The court in fact determined that the 2002 process was content valid and appropriate for ranking candidates for promotion. The court also found however that “the 2002 process although more sophisticated resulted in substantial adverse impact.” Plaintiffs challenged the 2002 process on the grounds that the 1996 process constituted an equally valid alternative with less adverse impact. The court found in favor of plaintiffs, stating that:
The Court finds merit in all three of Plaintiff’s broad suggestions as to alternative testing modalities. It is of considerable significance that the City had achieved a successful promotional program in 1996 and yet failed to build upon that success. While the 1996 process was not perfect it appears to have satisfied all of the legal requirements of promotional processes. The 2000 process departed substantially from the 1996 model in its abandonment of the practical exercise and re-weighting of the remaining elements. The 2002 processes, while arguably more sophisticated than its predecessors, suffered from a grossly disproportionate impact on minority candidates.
Jacob Bradley, Noah Bradley, Keith Ridley, and Jared Thomas v. City of Lynn et al. (2006)
In this case, the plaintiffs alleged that a written cognitive ability test used to qualify and rank applicants for entry-level firefighters was racially discriminatory. This case demonstrates a second key factor used by courts in evaluating less adverse alternatives—method of use. Plaintiffs claimed that both the test itself and the method in which it was used (for ranking) were discriminatory. The plaintiffs offered two forms of evidence to show adverse impact, the four-fifths rule and a statistical test. The court took note of the ranking issue (method of use) as a major factor.
Coupled with the statistical evidence is the fact that the statutory framework by ranking candidates by score makes the examination integral to whether and when individuals are hired.
To validate the use of examinations for ranking: Evidence which may be sufficient to support the use of a selection procedure on a pass/fail (screening) basis may be insufficient to support the use of the same procedure on a ranking basis under these guidelines. Thus, if a user decides to use a selection procedure on a ranking basis, and that method of use has a greater adverse impact than use on an appropriate pass/fail basis…the user should have sufficient evidence of validity and utility to support the use on a ranking basis.
Id. In this case, the “four-fifths rule” statistics demonstrate that the use of the examination for ranking has a greater adverse and disparate impact than the use of the examination for pass/fail. Therefore, it is not enough to validate the examinations generally.
While the attorneys have not briefed the issue, banding based on scores that have no statistical difference to diminish the adverse impact of a rank-order system seems consistent with the statutory scheme and applicable caselaw under Title VII.
The court determined that a number of less adverse alternatives were available to the defendant.
Second, the HRD could have used a physical abilities, personality (a.k.a. work style), and/or biodata (a.k.a. life experience) test in combination with the written cognitive examination to rank candidates. Based on the record, the HRD is one of the few major jurisdictions nationwide that uses a written cognitive examination as the exclusive basis for ranking firefighter candidates.
While none of these approaches alone provides the silver bullet, these other non-cognitive tests operate to reduce the disparate impact of the written cognitive examination.
In addition, the use of non-cognitive tests with the written cognitive examination increases the validity of the selection procedure. Statistically speaking, incorporating physical, personality, and/or biodata into the ranking mechanism increases its correlation coefficient.
Although the court’s enthusiasm for combining noncognitive measures with a cognitive ability test must be tempered based upon the scientific work of Sackett and others, this opinion offers a glimpse of the rationale used in finding for plaintiffs (Sackett & Ellingson, 1997).
Frank Ricci, et al. v. John Destefano, et al. (2006)
This case points out a recurring “method of use” issue that is given close scrutiny by the courts—weighing of select procedure components. The plaintiffs were 17 White candidates and 1 Hispanic candidate for promotion to the position of lieutenant in the New Haven Fire Department. Plaintiffs contended that the New Haven Civil Service board’s refusal to certify the results of promotion exams resulted in substantial adverse impact against African Americans and was a violation of law and in essence constituted race norming because the primary consideration in deciding not to certify the examination results was race. The court rejected plaintiff’s race argument based in part on another case at the appellate level that dealt with a similar issue. The court stated:
In Hayden v. County of Nassau, 180 F.3d 42 (2nd Cir. 1999), the Second Circuit held that race-conscious configuration of an entry-level police department exam did not violate Title VII or the Equal Protection Clause.
Following development of a test by the county and Department of Justice advisors, a validity analysis was conducted to determine which configuration of the tests was sufficiently job-related “yet minimized the adverse impact on minority applicants.”
The Court of Appeals rejected the plaintiffs’ contentions, finding plaintiffs were “mistaken in treating racial motive as a synonym for a constitutional violation” and observing that “[e]very antidiscriminatory statute aimed at racial discrimination, and every enforcement measure taken under such a statue, reflect a concern with race. That does not make such enactments or actions unlawful or automatically suspect.…”
The decisions in the cases cited above indicate the degree of careful consideration given to the issue of less adverse alternatives. Clearly a number of factors play a significant role in the courts’ decision making including (a) contextual issues such as the employers prior practices with regard to equal employment opportunity, (b) the existence of procedures already in use that could be considered less adverse alternative, and (c) method of use. It is equally clear that the breadth of counterarguments raised by defendants will include a few red herrings like racial norming.
References
Albemarle Paper Co. v. Moody (1975) (422 US 405).
Frank Ricci, et al. v. John Destafano, et al. (September 2006) United States District Court, District of Connecticut, Civil No. 3: 04cv1109 (JBA.)
Gatewood, R., and Field, H. (1994) Human resource selection. New York: Dryden Press.
Jacob Bradley, Noah Bradley, Keith Bradley, and Jared Thomas v. City of Lynn et al. (August 2006) United States District Court of Massachusetts, Civil Action No. 05-10213-PBS.
Marilyn Johnson et al. v. City of Memphis; Florence Billingsley et al. v. City of Memphis. (December 2006) United States District Court For The Western District of Tennessee, Western Division, Case No. No. 00-2608 DP & Case No. 04-2017 DP.
Sackett, P. R., & Ellingson, J. E. (1997). The effects of forming multi-predictor composites on group differences and adverse impact. Personnel Psychology, 50, 707–721.