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Background When a public safety department (e.g., fire, police, sheriff, state patrol, corrections, fire marshal) needs to establish a promotional process, a risk begins for that public entity. If the [...], In June 2009, the Ricci v. DeStefano case was decided by five of the nine U.S. Supreme Court judges. This case impacts public-sector employers by expanding on the rule called a "strong basis in evidence." Under this rule, a public-sector employer cannot engage in certain activities for the asserted purpose of avoiding or remedying unintentional disparate impact, unless the employer has a "strong basis in evidence" to believe it will be subject to disparate-impact liability. The evidence for this rule must be in place before a public-sector employer takes a race-conscious action to minimize adverse impact. This article critically evaluates the test validity discussion that occurred in the Ricci case; addresses topics relevant to the new rule not covered by the decision, such as the cutoff used, weights used, differentiating requirements of the rank-ordered list, and the rule of three; and describes guidelines for conducting a particular kind of study in an employment context, called a Croson Study, that can be used to gather a "strong basis in evidence." This article identifies circumstances under which a Croson Study is needed, and how to do it that will allow public-sector employers to evaluate whether they may be justified--using the Supreme Court's "strong-basis-in-evidence" rule--to institute race-conscious remedies under Title VII. Keywords testing, promotion, employment discrimination, disparate impact

Guidelines for using an expert monitor to monitor a plaintiff's remedy to monitor the remedy the court imposes for an employment discrimination lawsuit are given.

Employment discrimination cases can be tried with hypergeometric or binomial statistics. As both produce a standard deviation and a probability to determine statistical significance, both can be used in disparate impact analyses. Disparate impact can be analyzed by threshold, by barrier and by selection and these statistical distributions can be useful with all three. After adverse impact is demonstrated, the employer can prove validity, and the plaintiff has a chance to show if there is another practice with less adverse impact that will meet the employer's legitimate needs.

Disparate impact for job discrimination is defined statistically using three references. Various federal employee selection guidelines use an 80% rule though allow for discrimination occurring when this rule is met if separate hiring practices have a lower diversity rate. US Supreme Court cases state that individual practices can be discriminatory even when the overall hiring shows no disparate impact. The 1991 Civil Rights Act focuses on specific not overall processes. Discrimination can be determined through a threshold test and a barriers test using binomial statistics or applicant data depending on the findings.

The US Supreme Court decision in the case of Wards Cove Packing Co vs Atonio, which referred to how employment practices were responsible for racial separation in the workplace, may be significant for private and public sector employers, federal contractors, and plaintiffs. The court's statements on clear record-keeping and analysis are especially important to employers with at least 100 employees. The decision permits plaintiffs to use either a separate race-ethnic group or bring actions as a combined minority group. The parts of previous rulings affirmed by the decision include racial unevenness in one part of an employer's workforce is not sufficient to establish adverse impact; qualified persons in the labor market are the reference for study; and plaintiffs must show that specific factors in a defendants hiring or promotion policy have disparate impact. In response, employers should analyze federal guidelines for employment to anticipate hiring or promotion problems involving minorities.