Recently, I wrote two Alerts related to Lopez v. City of Lawrence [2014 U.S. Dist. LEXIS 124139]. One of the Alerts related to the implications of District Court Judge D.J. O’Toole’s ruling against aggregation of data for purposes of proving adverse impact.  Eric Dunleavy and Rachel Gabbard wrote a subsequent Alert on the implications of the aggregation ruling for federal contractors.  The other Alert I wrote related to Judge O’Toole’s rejection of the plaintiff’s argument that the defendant had alternatives with less adverse impact, an argument he also rejected.  Although O’Toole’s ruling was certainly a bad sign for the alternatives argument, I didn’t see it as a “death blow”, but rather, as just another instance in which a district court rejected the alternatives argument.

Not so for the 6th Circuit’s ruling in Johnson v. City of Memphis, where the district court ruling (2005 [355 F.Supp. 2d 911]) by Judge Bernice Bouie Donald supported the alternatives argument and the 6th Circuit ruling (October 27, 2014 [2014 U.S. App. LEXIS 20644]) overturned Judge Donald’s ruling.  District Court Judge Patti B. Saris also supported the alternatives argument in Bradley v. City of Lynn (2006 [403 F. Supp. 2d 161]).  However, I place less emphasis on the Bradley ruling because the City of Lynn was already a loser on failure to prove job relatedness and consistency with business necessity, rendering the alternatives ruling “icing on the cake.”  On the other hand, the district court ruling in Johnson v. City of Memphis is the only ruling I could find in which the alternatives argument was the only reason a defendant lost.  Therefore, the 6th Circuit ruling overturning the alternatives argument might represent the proverbial “death blow” for the alternatives argument.

To backtrack, In Bradley, a written test was the sole basis for hiring entry-level firefighters.  The ruling by Judge Saris was that there was adverse impact and insufficient evidence of job-relatedness.  Judge Saris also cited two valid alternatives with less adverse impact: (1) a combination of cognitive tests and physical abilities, and (2) a combination of cognitive tests, personality tests, and biodata.  Judge Saris ruled that “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.”  Again, this ruling would have more impact I think if the alternatives argument was the only reason the defendant lost --- it was not.

In the district court ruling in Johnson, Judge Donald ruled that that a promotion exam (for police sergeant) that produced adverse impact was valid, but the plaintiffs won on the theory that alternatives were available with less adverse  impact.  That ruling was based on the prior development of a valid promotion test in 1996 that resulted in less adverse relative to a subsequent promotion exam. Judge Donald wrote that:

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.

The plaintiffs appealed the ruling that the test was valid and the defendant appealed the ruling on alternatives.  The 6th Circuit rejected the plaintiff’s appeal and accepted the defendant’s appeal, thereby overturning the only ruling I could find in which the alternatives argument was the sole basis for a plaintiff victory.

The 1996 promotion test was designed by an I/O psychologist and was overseen by the DOJ.  There were four components: a "high-fidelity" law enforcement role-play exercise worth 50%, a written test, worth 20%, performance  evaluations worth 20%, and seniority, worth 10%.  The city attempted to use the same procedure in 2000, but there were test security violations with respect to the video component (worth 50%).  To avoid further security problems, the city hired an I/O psychologist to develop a new test.  To reiterate, the plaintiffs lost on their challenge (on the reliability of the new test) but won on alternatives.  The reliability issues are interesting in and of themselves, but for present purposes, my concern is the 6th Circuit’s overturning of the alternatives argument.

In rejecting the alternatives argument, the 6th Circuit accepted the defendant’s argument that the “protracted nature of simulation testing and the number of moving parts reinforced the City's concerns about testing security”.  The 6th Circuit also accepted the defendant’s argument that the video component took too long to administer and was too costly.

The bottom line here is that this case represents the only ruling favoring alternatives to (so far) reach a circuit court, and that court rejected it.  Does that deal a “death blow” to the alternatives argument in future cases?  You tell me.

By Art Gutman, Ph.D., Professor, Florida Institute of Technology

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