What Public-Sector Employers Need to Know About Promotional Practices, Procedures, and Tests in Public Safety Promotional Processes

Published date01 June 2013
Date01 June 2013
Subject MatterArticles
/tmp/tmp-18fp5pkS6cz7yg/input 487046PPM42210.1177/0091026013487046Public Personnel ManagementBiddle and Biddle
Public Personnel Management
42(2) 151 –190
What Public-Sector
© The Author(s) 2013
Reprints and permissions:
Employers Need to Know
DOI: 10.1177/0091026013487046
About Promotional Practices,
Procedures, and Tests in
Public Safety Promotional
Processes: After Ricci v.
Richard E. Biddle1,2,3 and Daniel A. Biddle2,3
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.
testing, promotion, employment discrimination, disparate impact
1Biddle & Associates, Inc., Sacramento, CA, USA
2Biddle Consulting Group, Inc., Folsom, CA, USA
3Fire and Police Selection, Inc., Folsom, CA, USA
Corresponding Author:
Richard E. Biddle, Biddle & Associates, Inc., USA.
Email: dickbiddle@hotmail.com

Public Personnel Management 42(2)
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 promotional process ends up adversely impacting a minority group,
minorities as a group, or women, a Title VII disparate-impact civil rights case could
begin. If each practice, procedure, and test creating adverse impact used in the promo-
tional process is job related to the satisfaction of a Court and no alternate employment
practice is available that would suit the employer’s needs with less adverse impact, the
public employer can successfully defend the suit, after spending a considerable amount
of time and money on this project. But what if it is not that easy?
What practices, procedures, or tests typically used by public employers in public
safety promotional processes are likely to adversely impact minorities or women?
1. Written tests
2. Weights assigned to written tests
3. Use of 70% cutoff score
4. Use of eligibility list in rank order
5. Rule of three.
When one or more of the above practices, procedures, or tests causes adverse
impact and no Croson Study1 has been conducted to provide the strong basis in evi-
dence required from Ricci v. DeStefano,2 the public employer has to rely upon the
job-relatedness evidence from a validation study, hope the Court supports it, and hope
the plaintiffs present no alternate employment practice that would suit the employer’s
legitimate needs, as the Court sees it. Some public employers are choosing new prac-
tices (see Table 1). If the public employer has conducted a Croson Study (based on
City of Richmond v. Croson, 1989a, discussed herein), perhaps under an attorney–cli-
ent relationship to protect the results, and that study supported some limited remedial
action, then other options become available to the public employer in addition to rely-
ing upon the validation study conducted.3 Without a Croson Study, the public employer
has more limitations, but still can take some positive steps to reduce unnecessary
adverse impact in its exam plan.
Once an employer is sued for employment discrimination under Title VII, the
defense costs include long-term dedication of time by highly skilled human resource
professionals, several attorneys, facilities to store documents, special computer equip-
ment for scanning, substantial clerical support staff, computer staff, outside consul-
tants, and, of course, nonbudgeted funds to pay all these staggering costs. What
happens when a public employer loses a Title VII disparate-impact suit? Some typical
remedies are paying back pay, paying for all plaintiffs’ litigation and discovery costs,
and then there is injunctive relief. Monitoring (R. E. Biddle, 2002) may be ordered for
a period of time. Changes may be imposed by a Court. Promotions may be delayed.
The end of June each year brings new decisions from the U.S. Supreme Court.
Sometimes there is a decision that changes long-standing practices. For example, the

Biddle and Biddle
Table 1. Older Practices Versus Newer Practices.
Old practices
New practices
Written tests as
1. Can measure only
1. Use assessment
most/all of a
especially for large
limited areas of the job.
selection process.
applicant pools.

Can be developed
2. Often produces
2. If a written test
in a job-related
unnecessary adverse
needs to be used,
way to measure
use job-related
important or
weights, a job-
critical parts of the
related cutoff, and
banding based on
Fixed weights (e.g., Everyone knows
1. Arbitrary, not job
1. Use job analysis
60% on written
the rules ahead of
data or subject-
test; 40% oral
matter experts to
establish job-
related weights.

2. Often creates
2. Use job-related
unnecessary adverse
cutoffs and job-
related weights.

3. Without standard
3. Standard score
scoring, the effective
so the intended
weights may be grossly
weights equal
different from the
effective weights.
intended weights.
Fixed cutoff (e.g.,
Everyone knows
1. Arbitrary, not job
Use subject-matter
the rules ahead of
related, may not
experts to set
separate qualified from
unqualified candidates.
cutoff scores to

2. Often creates
measure minimal
unnecessary adverse
Rank-ordered list.
1. Not justified based on Use the reliability
the reliability of typical
of the tests to
band candidates so

2. Not job related
substantially equally
without justification.
qualified candidates

3. Often creates
based on the tests
unnecessary adverse
are within each
Rule of three.
1. Not justified based on Use the top
the reliability of the
band containing
substantially equally

2. Arbitrary, not job
qualified candidates
based upon what

3. Often creates
the tests measure.
unnecessary adverse

Public Personnel Management 42(2)
1964 Civil Rights Act did not include an express prohibition for employment practices
or policies that produce an adverse impact on a group protected by the Act. However,
in June 1971, the Supreme Court decided Griggs v. Duke Power Company (1971) and
interpreted the 1964 Civil Rights Act to prohibit, in some cases, employers’ facially
neutral practices that are discriminatory in operation if an employment practice oper-
ates to exclude minorities and cannot be shown to be related to job performance. A few
years later, in June 1975, the U.S. Supreme Court supported its disparate-impact rule
in Albemarle Paper Co. v. Moody (1975), stating that an employer’s burden is to dem-
onstrate that practice has a manifest relationship to the employment in question when
it has an adverse impact. In June 1982, the Supreme Court in Connecticut v. Teal
(1982) held that even if the selection process as a whole showed no overall adverse
impact, plaintiffs can still establish a prima facie case of disparate-impact discrimina-
tion if one of the practices, procedures, or tests adversely impacts a protected group.
In June 1988, the Supreme Court in Watson v. Fort Worth Bank & Trust4 supported the
use of disparate-impact analyses for subjective as well as objective employment prac-
tices. Finally, in 1991, Congress passed the Civil Rights Act of 1991,5 which included
a provision codifying the prohibition of disparate-impact discrimination. The Ricci
case, discussed in this article, further expands on the limitations public employers
have with disparate-impact discrimination.
Summary of the Ricci Case
This case is an employment discrimination case under Title VII of the Civil Rights
Act. It covers disparate-treatment (intentional) discrimination and disparate-impact
(unintentional) discrimination. Disparate-treatment cases occur where an employer
has treated a person less favorably than others because of a characteristic protected by
Title VII (race, color, religion, sex, national origin). In a disparate-treatment case, the
plaintiff must prove intent or motive.
By contrast, a disparate-impact case occurs when an employment practice, proce-
dure, or test that is neutral on its face has...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT