Last week, Art Gutman wrote an interesting blog on US & Vulcan v. NYC, which is a NYC firefighter case involving both pattern or practice and disparate impact allegations. http://dciconsult.com/us-vulcan-society-v-nyc-a-saga-continues/. Recall that Judge Garoufis had previously ruled that what started as a disparate impact testing case had matured into an intentional discrimination pattern or practice case, primarily because of historical evidence of constant and substantial disparities and questionable validity evidence. As Art noted, a 3-judge court of appeals reversed summary judgment and ruled that NYC simply needed to articulate that the test was facially neutral as the response to a pattern or practice allegation (a lighter burden), and didn’t necessarily need to rebut the statistical disparities (a heavier burden). In other words, the fact that the test was facially neutral (as all structured selection procedures are) was the insulation against the pattern or practice allegation. As Art pointed out, this case is probably not over. However, even if this ruling was reversed and the use of a potentially discriminatory test over time could mature into a pattern or practice of discrimination, I would argue that doing rigorous validation research before or during implementation could ensure that this maturation doesn’t happen.
The ruling has some intuitive implications for federal contractors. Recall that pattern or practice allegations related to employee hiring still account for over 95% of the financial remedies OFCCP obtains in settlements for alleged victims of discrimination. The hiring processes in the vast majority of these settlements are typically unstructured, decentralized, and highly subjective. This scenario leaves the door open for a pattern or practice allegation that protected group status could be used in deciding who to hire and who not to hire. Using a structured selection system that is facially neutral and consistently administered removes the pattern or practice allegation from the equation; because by definition, that process is facially neutral and not based on protected group status. This approach may be the safest way to mitigate risk and ensure that employee hiring is conducted in legally defensible ways. Also, keep in mind that validated selection procedures shown to be job-related should improve workforce quality, as well. DCI has experience developing and implementing these strategies for federal contractors and would be happy to discuss these approaches if you are interested.