How Two Supreme Court Decisions May Affect Employment Discrimination
October 03, 2009
in light of this ruling, “employers need to be very careful about how they select employees for promotions, for reductions-in-force,” and for other large-scale actions, said Eric Dreiband, a partner with Jones Day in Washington, D.C., and a former Equal Employment Opportunity Commission (EEOC) general counsel.
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Dreiband recommended hiring labor economists as experts to conduct a disparate impact analysis, and following EEOCs Uniform Guidelines on Employee Selection Procedures. Title VII provides a defense to employers in discrimination actions if they follow those guidelines, he noted.
Eric Schnapper, a University of Washington law professor, added that it is critical for employers to take a hard look at their standards and exams, especially “before they’re administered.” The “strong basis in evidence” standard applies in cases such as Ricci, where the city of New Haven, Conn., did not review its promotion exam for potential disparate impact until after it was given, he said. “At the point where you haven’t given the test yet, the strong basis in evidence rules don’t apply,” he said.
Schnapper also agreed with Dreiband’s recommendation that employers hire experts and rely on counsel who are “experienced in this very technical area of the law.”
Dreiband said after the exam is administered, if an employer wants to disregard results, it should develop a record on less discriminatory alternatives so that it has a stronger case that applying the results would have had a disparate impact on racial minorities.
Where an exam is administered before the employer decides how to apply it, Schnapper said the employer is in the “no man’s land between test design and post-administration changes.” He suggested that a court would be more likely to treat the situation as if it were one of test design rather than canceled results, but added, “I think it’s definitely better to do this earlier in the process.”
“The problem with testing is often not the content of the test, but the way you decide to use it,” Schnapper said, adding that an employer would have an easier time showing that an exam was job- related and consistent with business necessity if the exam is pass- fail. New Haven, he said, did not have this leeway because use of the promotion exam was dictated by its collective bargaining agreement with the firefighters’ union – a carryover standard developed when most firefighters in the city were white.
The other major case decided by the Supreme Court earlier this year. Gross v. FBL Financial Services Inc., is more likely to affect the technicalities of law rather than day-to-day employment activities. attorneys observed.