Five Things Employers Can Learn from the Ricci v. DeStefano Case
Although I tipped my hand yesterday through some posts (here and here) and an interview with the Connecticut Law Tribune, here are some takeaways for employers from the Ricci v. DeStefano case.
- The Decision Applies to Private Employers. Before Ricci was decided, the case could've gone two ways -- it could have been based on constitutional (equal protection) grounds, or on statutory (Title VII -- the law prohibiting race and gender discrimination) grounds. The Court decided to go with the latter. Why does that make a difference? Because Title VII applies to both private and public employers; if it had been decided on equal protection grounds, it would likely have applied only to public (go
vernmental) employers.
- Testing Will Never Be The Same. Whether public or private, employers who use tests to assist them in hiring and promotional decisions get some guidance now in the area. Unfortunately, the guidance that the Supreme Court provides isn't particularly illuminating. Parsing things out, the court suggests that if a test is designed to be race-neutral, the fact that the numbers come out differently than an employer expects is not, in and of itself, enough to throw out the results of the test. There needs to be something more, some "strong evidence in fact". What that is remains to be seen.
But supposing that an employer does accept the results of the test, can it defend itself from a disparate impact claim? The court says yes. The court suggests that as long as an employer designs a test that is that is “job related for the position in question and consistent with business necessity” that might get the employer some traction in defending a claim of disparate impact. Even in that case, however, the Court opens to the door to employees too: The employee can still win a disparate impact claim if the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs.
As a result, employers who use testing in particular will need to be able to rule out other alternatives that it might have used to make its hiring and promotional decisions. (Note: Title VII does contain specific provisions regarding testing as well so employers should not forget to look to the statutory language as well.)
- Affirmative Action Plans and Diversity Plans Are OK For Now. Maybe. Some larger companies have programs now that try to ensure that the makeup of their workforce properly represents the makeup of the population. For example, the employer may track "high potential" employees (particularly minorities) within their corporation to ensure that they receive proper consideration for promotions and opportunities. Are these programs ok?
The court suggests that it will allow for some affirmative action plans and notes that employer's "voluntary compliance efforts" are essential to the success of Title VII:
"[We do not] question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. ... "
For employers, it suggests that you can review your policies and practices that ensure that minorities have a fair chance to succeed, but reinforces the view that you still cannot make your decisions to hire and promote based on race. But how much "affirmative efforts" an employer can use, remains an unanswered question from Ricci.
- Tread Cautiously In Conducting a Disparate Impact Analysis for Layoffs and Terminations. One area that disparate impact claims arise is in the context of layoffs and reductions in force. For example, an employee may claim that the black workers were twice as likely to be laid off as white workers. As a result, many employers have started to conduct a disparate impact analysis before the termination to see if the raw statistics are of concern. If they are, employers sometimes reconsider their decisions or re-engineer the layoff criteria to remove such a disparate impact. In other cases, employers simply review the particularly data to ensure that the decisions were fair.
Ricci leaves open the question of whether that practice is legal under Title VII. The court does suggest that the city "was not entitled to disregard the tests based solely on the racial disparity in the results". Does this mean that employer -- once it settles on a process for terminations -- cannot change that system after it runs the numbers? At one point is the employer "stuck" with the results? That will likely be the subject of litigation at some point.
- Don't Expect This Law to Remain Static. One thing is certain -- there are likely to be some more changes to this law in the years to come. One way is through Congressional action (as Senator Patrick Leahy has already suggested). Another way is through additional Supreme Court action. Indeed, Justice Scalia has suggested that there are battles yet to come on this issue:
[The] resolution of 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.
As a reminder, I'll be participating in a free webinar next week on this subject. I anticipate that it'll focus on the practical implications of the decisions and additional steps that employers can take now to avoid becoming the next test case before the Court.
Connecticut,
ed not worry about the case (something that I disagree on, to a degree, as I'll discuss in an upcoming post):
larger issues and it's not out of the question to see it impact affirmative action plans or diversity programs.
ed here, as well.) 
ion's knowledge) and the union -- when it learned of this -- made an unconditional offer to return to work; an issue has arisen ever since of whether the hiring of permanent replacements was an unfair labor practice in this situation.
this case AT&T) did not violate the Pregnancy Discrimination Act when it gave less retirement credit for pregnancy leaves that occurred prior to the passage of the act.
t held that the defamed party (typically an employee) does not need to prove "actual malice" to defeat a qualified privilege claim.
have in getting courts to grant summary judgment and how cases that seem small can end up becoming big.
otherwise deserve because they happen so infrequently.
y did not "preserve" the issue at the lower courts through a proper protest. 
t is believed to be the largest judgment ever awarded under The Uniformed Services Employment and Reemployment Rights Act (USERRA), a federal law that protects service members' reemployment rights when returning from a period of service in the uniformed services, including those called up from the reserves or National Guard, and prohibits employer discrimination based on military service or obligation.
about the use of certain language in jury instructions and it provides some guidance as to where the court might be headed if it had to decide the issue head-on again.
anic applicant who was ultimately hired for the position and that he had more experience than that person as well.
Two of the three wrestlers, whose lawsuit against World Wrestling Entertainment, Inc. ("WWE") was dismissed late last month, have asked a federal court to reconsider the matter and give them another opportunity to plead their case against the WWE..jpg)
nsively
yment discrimination claims involving race, gender, physical disability, age and the like. It's holding was unequivocal: "The issue before the court is whether General Statutes § 46a-86 authorizes the award of damages for emotional distress and attorney's fees for a violation of General Statutes § 46a-60(a)(1). We conclude that it does not." (Open disclosure: My current firm successfully represented the hospital in that matter.)
representing the town’s police officers, did not cover the promotion to the position of police captain, which is a position outside the bargaining unit. (Note: the decision will be officially released on February 24, 2009.)
se that found that certain discussions did not create an employment contract and that the employee was properly classified as "at-will".
have an employee handbook states that all employees are employees-at-will, except if there is an an agreement for a specified period of time by the CEO or hiring manager to the employee.
ment
se at some point or another, particularly as a parent or child: "But So-and-so Is Doing the Same Thing!"
could entitle the employee to double damages. Here, the
as happened to the case of
iscrimination case.
onymous letter complaining of Mr. Plofsky. (For background on the matters,
ounsel use some of these practice tips including running searches on the individuals and witnesses and investigating whether any of the key players use social networking sites. And if so, ask for information about postings and make a request that such information be preserved.
as a story about the
There's been a lot happening over the last few days, both election and non-elected related -- too much to keep up with. In fact, with the election dominating the news, some other interesting items have felt overlooked. So it seemed an appropriate time for a post recapping some of the most interesting and noteworthy items that I've come across the last few days:
ublic policy underlying the ADA by requiring her to undergo a return to work medical examination. Under the "wrongful discharge" theory, she contended, she should not only be allowed to proceed with her claim but prevail on it as well.
under ADEA. But a case decided late last week demonstrates the importance of making sure that employees follow the procedural requirements required by law under anti-discrimination provisions...jpg)
n employment discrimination complaint under state law (not federal) begins on the date the employee's employment actually ends, not the date that the employee received notice that his or her employment would end..jpg)
orneys world-wide. (I should note that the local attorneys in the case are from Day Pitney, a prior employer of mine and well-respected in the Connecticut area as well.)
sharing his views of the current Court.
d with CHRO, an agency that wastefully duplicates the federal Equal Employment Opportunity Commission. Brothers further interpolates into my column an attack on the “intellectual” gifts of his staff. More garbage. I said many were unproductive, not stupid.
er this month, a federal judge ruled in favor of the employee following a bench trial. Numerous blogs have posted on it, including
ployee even after firing. In the Curry case, a fired warehouse worker's attorney raised issues about the employee's disability; the Connecticut Supreme Court suggested that the post-termination letter formed the basis of an employee's request for a reasonable accommodation. In doing so, the Court relied on the ADA to provide some further guidance on what the state anti-discrimination law meant.
ecords.
by a company attorney before their testimony.
last week or so, two events related to the attorney have hit the headlines.
le story of their own
ransgender litigation -- while perhaps getting headlines -- remains a very small percentage of employment claims out there.
(WWE) claiming that they have been improperly classified as "independent contractors" and not employees.
,
luding punitive damages and attorneys fees). 