What public-sector employers need to know about promotional practices, procedures, and tests in public safety promotional processes: after Ricci v. DeStefano

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