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

In a lawsuit filed in the District Court of Connecticut, Garry Tinney and six co-plaintiffs sued the City of New Haven and the International Association of Firefighters Local 825 for racial discrimination in relation to the promotion exams targeted in Ricci v. DeStefano. Recall that the Supreme Court ruling in this case was that New Haven could not prove a reasonable basis for believing they would lose an adverse impact challenge to minority applicants for promotion to lieutenant and captain. Of course, there was every reason to believe they would be sued, and the lawsuit was filed on October 7, 2011 (see http://www.newhavenindependent.org/archives/upload/2011/10/Firefighters.pdf). The lawsuit cites the 5th and 14th Amendments, and both adverse impact and disparate treatment under Title VII.

This lawsuit follows on the heels of the 2nd Circuit ruling in Brisco v. New Haven, a case discussed in a DCI Alert dated August 20,2011. Briscoe challenged the 60-40 weighting for written versus oral tests. He was the top scorer among 77 applicants for lieutenant on the oral exam, but ranked 24th overall because of his poor performance on the written test. Briscoe claimed that a 70-30 oral versus written weighting “would be equally good or better at identifying the best-qualified candidates for promotion, and would have less disparate impact on racial minorities.” Interestingly, in Brisco, New Haven argued unsuccessfully that “an employer may defeat a disparate-impact claim if it had a strong basis in evidence that it would have been subject to disparate-treatment liability” which, in effect, is the corollary argument to what the Supreme Court ruled in Ricci. However, the 2nd Circuit rejected this argument ruling that “Ricci did not substantially change Title VII disparate-impact litigation or preclusion principles in the single sentence of dicta targeted at the parties in this action.”

The Tinney lawsuit goes beyond Brisco. Michael Brisco focused primarily on alternative selection procedures that produce less or no adverse impact, an important third phase in the adverse impact scenario after the plaintiff proves adverse impact in the first phase and the defendant establishes job relatedness and consistency with business necessity in the second phase. The Tinney lawsuit asserts that there is no basis in evidence for supporting the 60-40 split favoring written over oral exams in the second phase. What’s interesting here, is in the process of trying to undo their original exams, New Haven never received a final validity report from the test maker. Therefore, if this lawsuit goes forward, the validity of this 60-40 split will be a central issue in determining if the testing process, in its entirety, is job related and consistent with business necessity, let alone, the best procedure for the promotion process.

Also of interest, the Tinney plaintiffs are suing for disparate treatment on grounds that the 60-40 split is the product of 20 years of collective bargaining by a union whose members are primarily white. Thus, the question here is whether there was motive to maintain this split given past test performance showing adverse impact based primarily on the written portion.

If this case goes forward, it is likely to be a battle of experts on the relative merits of written versus oral exams. Look for proponents of assessment centers to reemerge. We will keep you posted.

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