Ways to Reduce Adverse Impact 1 Subgroup Norming

Ways to Reduce Adverse Impact 1) Subgroup Norming: Against the CRA of 1991 2000 e-2. [Section 703] (l) It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin. 2) Banding: Randomly selecting individuals from bands (race-neutral banding) is legitimate to use. Race conscious banding is “iffy” but is best if protected-group status is used along with other factors (Bridgeport Guardians v. City of Bridgeport, 1991 & Officers for Justice v. Civil Service Commission 1992). 3) Alternate test or combinations of tests: Legal to use. From Section 1607(3)(B) of the Uniform Guidelines. Where two or more selection procedures are available which serve the user’s legitimate interest in efficient and trustworthy workmanship, and which are substantially equally valid for a given purpose, the user should use the procedure which has been demonstrated to have lesser adverse impact.

Ways to Reduce Adverse Impact (cont. ) Manipulating Test Content: Unsettled. Upheld in Hayden v. Nassau County In 1982, Nassau County and the Department of Justice entered into a consent decree to develop an exam without adverse impact Two failures, one in 1983 another in 1987 (adverse impact existed); Committee formed to construct a new exam Committee developed a new test with 25 components (adverse impact was still found!) Case Summary: To reduce adverse impact, 16 components were eliminated, only 9 retained Lawsuit filed by those claiming that they would have been hired if the full exam was used 2 nd Circuit ruled in favor of the County, “the intent to remedy the disparate impact of prior exams is not equivalent to an intent to discriminate against non-minority applicants. ” Although race was taken into account in redesigning the exam, it was deemed to be “scored in a wholly race-neutral fashion”

Hayden v. Nassau County (cont. ) Although the County “won” in Hayden, the findings need to be interpreted in light of: • A history of past litigation (20 years worth) • Influence of an existing consent decree with the DOJ

Ways to Reduce Adverse Impact (cont. ) Discarding Test Results: (see Ricci v. De. Stefano) Basic Facts From Ricci • Tests for promotion of firefighters to Lieutenant & Captain developed using content validity strategy • Tests results in adverse impact on Blacks & Hispanics • Competitor to IOS (Hornick) testifies telephonically without ever examining test --- tells CSB IOS test is valid, but assessment centers result in less adverse impact • Others testify ---5 hearings ---lots of political pressure • 2 -2 vote (1 abstention) by CSB ---test not certified & Hornick is hired to develop new tests • 17 Whites & 1 Hispanic sue

Written test = 60%, Oral test = 40% (based on collective bargaining agreement)

District Court Ruling (Judge Arteton) • Intent to remedy the disparate impact is not equivalent to an intent to discriminate against non-minority applicants • Judge acknowledges that CSB decision to not certify is race conscious -- • However, she rules it leads to race-neutral results because all exam results are discarded and nobody is promoted • 3 -judge panel of 2 nd Circuit issues short per curium ruling stating that Judge Arteton‟s ruling is well-reasoned & CSB is in unfortunate position of having no good alternatives • 13 2 nd Circuit judges vote 7 -6 to not review Arteton’s ruling en banc (when all the members of an appellate court hear an argument) --- 6 Dissenters urge SC to review Arteton’s ruling

Supreme Court Decision in Ricci Ø The City’s decision was motivated by race --- not certifying test results is illegal “Whatever the City's ultimate aim--however well intentioned or benevolent it might have seemed--the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its racebased action. ” Ø Strong-basis-in-evidence standard adopted by the Supreme Court “For the foregoing reasons, we adopt the strong-basis-in-evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII” – Good faith standard seen as too lenient – Certainty criterion viewed as too harsh

Ricci (cont. ) Connecting SC decision with race-norming provision in CRA-91: If an employer cannot rescore a test based on the candidates' race, ｧ 2000 e 2(l), then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotioneligible candidates--absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision Dissent: Flaws in the testing used by the City and possible alternative measures The Court today holds that New Haven has not demonstrated "a strong basis in evidence" …. . In so holding, the Court pretends that "[t]he City rejected the test results solely because the higher scoring candidates were white. " That pretension, essential to the Court's disposition, ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes “… the City never asked whether alternative methods might better measure the qualities of a successful fire officer, including leadership skills and command presence. See id. , at A 522 ("I was under contract and had responsibility only to create the oral interview and the written exam").

Title VII v. The 14 th Amendment? Warning from Scalia “ …the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how--and on what terms--to make peace between them. “… this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution's guarantee of equal protection? The question is not an easy one.

Exclusionary Rules • Employers should carefully scrutinize exclusionary rules based on potential causes of adverse impact, including: – No beards – Arrest records (e. g. , Gregory v. Litton, 1972) – Misdemeanors vs. felonies (e. g. , Carter v. Gallagher, 1971) – Credit information – Wage garnishment • Employers should ensure that every exclusion in job descriptions, advertisements, and background checks can be defended

Arrest and Conviction Records EEOC Guidance for Arrest and Conviction Records (2012) OFCCP Directive Regarding Criminal Record Restrictions (2013) Overall Concerns: Whatever statistics you look at, Blacks and Hispanics are: a) arrested, b) convicted, and c) sent to prison at a significantly higher rate than Whites SO … use of such data may have a DISPARATE IMPACT on both African Americans and Hispanics (perhaps disparate treatment too; treating minorities more harshly than non-minorities for the same or similar offenses)

Arrest and Conviction Recommendations Step 1: Did the policy disproportionately screen out applicants based on race, national origin or another protected factor? Step 2: Is the exclusion job-related and is there a business need related to the job in question? • Unless the above is satisfied, the EEOC suggests not asking about conviction records on application forms. MA law: May not ask on its written application form criminal record information unless very specific conditions apply Consistent with the above, the EEOC stress considering: 1) the nature and severity of the offense, 2) the amount of time that has passed since the conviction (or completion of one’s sentence), and 3) the nature and type of job sought EEOC Suit (2013) Against BMW and Dollar General for Discrimination Using Criminal Background Data

Recent Rulings on Use of Credit and Criminal Background Checks EEOC v. Kaplan Higher Learning (2013) EEOC position: Kaplan’s use of credit reports adversely impacted Black applicants. Had to use “race raters” to decide race from driver’s license photos of applicants But, circuit court judge (N. D. Ohio) ruled this approach to be unreliable and not scientifically rigorous enough (did NOT meet the Daubert standard): 1) 2) 3) 4) 5) technique or theory can be or has been tested whether it has been subject to peer review and publication the known or potential rate of error of the technique or theory the existence and maintenance of standards and controls whether the technique or theory has been generally accepted in the scientific community >>> Judge issued a SJD

EEOC v. Freeman (2013) EEOC evidence: • 51 Black applicants passed over between March 23, 2007, and Aug. 11, 2011 because of credit histories • 83 Black and male workers passed over between Nov. 30, 2007 and July 12, 2012 based on criminal records. Data in report issued by EEOC deemed to be problematic: (e. g. , did not include data on all available applicants for the two classes for the entire class period) Words used by the judge in this case: “flawed, ” “skewed, ” “rife with analytical errors, ” “laughable, ” and “an egregious example of scientific dishonesty” Judge also ruled that the EEOC did not identify a specific employment practice that 9 caused the alleged adverse Also in 2013: State Attorney Generals Letterimpact Opposing EEOC Guidance on Criminal Background Data

Exemption for Religious Institutions From Title VII: It shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion. So, under Title VII, religious organizations are permitted to give employment preference to members of their own religion. The exception applies only to those institutions whose “purpose and character are primarily religious. ” Factors to determine this include: • Do its articles of incorporation state a religious purpose? • Are its day-to-day operations religious (e. g. , are the services performed, products produced, or the educational curriculum directed toward propagation of the religion)? • Is it not-for-profit? • Is it affiliated with or supported by a church or other religious organization? >>> Only allows religious organizations to prefer to employ individuals who share their religion. Other forms of discrimination are outlawed (e. g. , race, sex)

Ministerial Exception • Clergy members (e. g. , ministerial exemption) cannot bring claims under the federal employment discrimination laws (e. g. , , Title VII, ADEA, EPA, ADA) • Based on First Amendment --- governmental regulation of church administration, including the appointment of clergy, impedes the free exercise of religion and constitutes impermissible government entanglement with church authority

MINISTERIAL EXCEPTION EEOC v. Hosanna-Tabor Sequence of Events: • Plaintiff (Cheryl Perich) after receiving the required training (e. g. , coursework, oral exam) was categorized as a “called teacher (versus “lay” teachers) and was given the formal title of “Minister of Religion Commissioned” • Plaintiffs duties overlapped a lot with those of lay teachers. But, she also taught a religion class, led students in daily prayer and devotional exercises, and took students to school-wide chapel services on a weekly basis • Plaintiff developed narcolepsy and took disability leave (Fall of 2004 -2005 term) • In January, plaintiff announced she’d return in February • Principal told plaintiff a lay teacher had been hired to replace her for the remainder of the year. Principal also doubted plaintiff was ready to return and, subsequently, congregation offered to pay portion of her salary to resign. Plaintiff refused. • In February, plaintiff showed up for work and refused to leave until written documentation was given that she’d reported to work

Sequence (cont. ) Principal called plaintiff and said she’d likely be fired. Plaintiff responded that she’d contacted a lawyer and intended to sue. Plaintiff received termination letter for: • Insubordination and disruptive behavior • Damage to the working relationship by threatening to sue Plaintiff contacted EEOC claiming violation of the ADA; EEOC sued church for retaliation Decision: District Court granted SJD for defendant (Church) 6 th Circuit: Plaintiff was NOT a minister (e. g. , lay teachers did same work, Plaintiff did many secular duties) S. C. Plaintiff was a minister for purposes of the exception – ruled for the Church

EEOC v. Abercrombie & Fitch (2015) • Failed to hire plaintiff because of her scarf – a violation of the company’s “Look Policy” (prohibits wearing caps) • She was judged to be qualified but store assistant manager (Heather Cooke) was concerned about her scarf and possible violation of company policy. Cooke later asked District Manager for guidance saying that she thought the plaintiff wore the scarf for religious reasons. Told NOT to hire plaintiff. • Company said plaintiffs cannot show disparate treatment without first showing that an employer has “actual knowledge” of the applicant’s need for an accommodation • Supreme Court: Planitiff burden for a disparate treatment case is to show that the need for an accommodation (i. e. , for a religious practice in this case) was a motivating factor in their employment decision. No knowledge requirement and failure-to-accommodate challenges can be brought as disparatetreatment claims.

Language and Communication • Selection decisions based on foreign accent and fluency in English are legal as long as they are jobrelated and consistent with business necessity • Also true for English-only rules (e. g. , safety, performance) – Employment decisions may be based on accent if effective oral communication in English is required to perform job duties (e. g. , teacher, customer service) and an individual’s foreign accent interferes with ability to communicate orally in English – An individual’s lack of proficiency in English may interfere with job performance in some situations, but not in others (context is important) • The employer should not require a greater degree of fluency than is necessary for the relevant position