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Decision Could Affect Private Employers

Diversity efforts may have to be re-evaluated

By CHRISTIAN NOLAN

Private employers with workplace diversity programs are among those who could be affected by a Monday U.S. Supreme Court ruling, according to legal experts.

Though the ruling in Ricci v. DeStefano focused on promotional exams given to New Haven firefighters, the majority decision was crafted in such a way that it will likely influence businesses that base job promotions at least in part on tests.

In Ricci, the court said that the city of New Haven was wrong to toss out the results of promotional exams on which African American applicants did poorly. The lawsuit was brought by 19 white firefighters and one Latino who did well on the test for lieutenants’ and captains’ positions.

The lesson, said Connecticut lawyers, is that public and private sector employers with affirmative action programs or diversity initiatives can’t disregard test results that aren’t to their liking.

“It’ll certainly have an impact on towns and companies that rely on these types of tests,” said attorney Daniel A. Schwartz, a partner at Pullman & Comley. “If they don’t want to use the test [results], they’ll have to come up with a pretty good reason.” Schwartz, who writes the Connecticut Employment Law Blog, noted that the justices decided the case using Title VII of the federal Civil Rights Act instead of the Equal Protection clause of the Constitution. The latter, he said, would have had less of an impact on private employers, as constitutional claims tend to affect the public sector.

“Certainly private employers need to be very aware of this particularly if they use tests for promotions,” said Schwartz. Attorney Bernard E. Jacques, a partner at Pepe & Hazard who handles employment and labor work, said the public sector is heavily reliant on civil service exams and the decision provides a roadmap on how to design a test.

“I think it’s another announcement by this Supreme Court – the number [of minorities] in and of itself are not legally significant,” explained Jacques. “Merely because your numbers don’t look good simply doesn’t justify some kind of favorable treatment for minorities. I think if you’re going to challenge the test, you’re going to have to come up with something pretty specific as to why that test is flawed.”

Jacques agreed that the decision would affect the way employers of all types handle affirmative action policies in the future. “I think people committed to a diverse workplace are going to have to be very creative in the steps they take to ensure diversity,” said Jacques. “There are still ways of doing it. But it’ll be a lot harder.”

What is certain, according to legal experts, is that the results will have a profound impact on hiring by cities and towns.

“Cities wanting the firefighting force to reflect the diversity of the city will have to be more careful,” said Robert Farrell, a law professor at Quinnipiac University’s School of Law. “Cities will be more reluctant now to make race a factor in hiring.”

Farrell said that Justice Ruth Bader Ginsberg’s dissent could still influence the way employers handle future tests. For instance, she explained that many municipalities do not test firefighters the way New Haven did. Rather than a “paper and pencil” test, perhaps there should be more simulations to test actual firefighting skills, Ginsburg wrote. “I suspect cities like New Haven will be looking around for a different kind of exam that will still identify people that qualify but won’t have a disproportionate impact,” said Farrell.