Attorney John Williams is well-known in this state for his avid representation of various state workers — particularly state police officials — in discrimination matters. Yesterday, he held a press conference to announce that he will be filing a class action lawsuit in a few weeks challenging the hiring procedures of the Connecticut State Police.
The Hartford Courant has the details in an article this morning:
Racism is so entrenched in the Connecticut State Police that basic hiring practices ensure only a few minority troopers will even enter a training class, never mind be promoted in the ranks, an attorney representing a black troopers’ coalition said Thursday. …
Only candidates who score at least 85 out of 100 on a written test are chosen to continue training, even though the passing score is 65. That practice discriminates against members of minority groups, Williams said.
Public Safety Commissioner John A. Danaher III vehemently denied Williams’ accusations and defended the department’s hiring practices, saying they are fair and blind to race. He also said he has taken steps since becoming commissioner to recruit more members of minority groups, including reaching out to more colleges and forming a selections unit that is largely minority.
WTNH has this report on the subject, as does the AP. Because the complaint hasn’t be filed yet, it is too early to tell the exact legal theories and arguments that will be used in the case, but it appears to be following a well-worn path of what are known as "disparate impact" cases.
So what is "disparate impact"? Well, when most of us hear of discrimination cases, they are known as "disparate treatment" cases, not "disparate impact" cases. These cases allege that someone intentionally discriminated against them because of a protected class (race, gender, etc.)
"Disparate Impact" cases are something different. LawMemo has a nice little summary in its blog:
Disparate impact is the idea that some employer practices, as matter of statistics, have a greater impact on one group than on another.
A good example, taken from the first US Supreme Court Title VII case on the topic: When hiring laborers, the employer required applicants to have a high school diploma. The diploma requirement screened out vastly more blacks than it did whites. Therefore, there was a disparate impact based on race, even though there was no intentional discrimination.
The Supreme Court said that once the employees proved a significant disparate impact, the burden shifted to the employer to prove that the diploma requirement had "a manifest relationship to the employment in question."
Federal legislation enacted in 1991 says that if the employees prove that a practice causes a disparate impact, then the employer must demonstrate that the practice "is job related for the position in question and consistent with business necessity."
The allegations being raised by Attorney Williams are similar. He appears to be saying that the decision to screen applicants based on their score of a written test has a disparate impact on black applicants. The EEOC has issued some guidance on employment tests that shed further light on the subject:
Moreover, as the EEOC notes, in 1978, the EEOC adopted the Uniform Guidelines on Employee Selection Procedures or “UGESP” under Title VII. UGESP provided uniform guidance for employers about how to determine if their tests and selection procedures were lawful for purposes of Title VII disparate impact theory:
UGESP outlines three different ways employers can show that their employment tests and other selection criteria are job-related and consistent with business necessity. These methods of demonstrating job-relatedness are called “test validation.” UGESP provides detailed guidance about each method of test validation.
In general, disparate impact cases are typically long drawn out cases that rely, in good measure on statistical analyses by experts. They are costly and time-consuming affairs. Thus, don’t expect a quick resolution to the claims raised in this new lawsuit. Indeed, the State Police will likely spend lots of time arguing that the standards it uses are "job related" and "consistent with business necessity". Who will prevail? Stay tuned….