Home -> Law Blog Directory -> Labor & Employment Law Blogs -> New York Public Personnel Law

Labor & Employment Law

: New York Public Personnel Law

The Merit System and public employment ? does it have a future?

The Merit System and public employment ? does it have a future?
Ricci v DeStefano, United State Supreme Court, Docket Nos. 07-1428 and 08-328

New York State?s Constitution mandates that ?appointments and promotions in the civil service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive? [Article V, Section 6].* Other states have adopted similar provisions with respect to appointment and promotion in the public service.

The Ricci case challenges the City of New Haven?s refusal to certify the results of a fire department promotion examination because the test results had a disparate impact on African Americans.

The U.S. Court of Appeals, Second Circuit, [06-4996-cv] ruled that ?in refusing to validate the exams, [New Haven] was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.?

An appeal from the Second Circuit's ruling is now pending before the Supreme Court. The high court?s ruling in this action may well determine the future of the merit system and the use of examinations by public employers for the selection and promotion of its employees.

New Haven firefighters and lieutenants took a competitive job-related examination in an effort to qualify for promotion to command positions in accordance with the prevailing merit selection rules. Considering the race of the successful candidates and Title VII's "disparate impact" provision, city officials refused to use the eligible list to promote the successful candidates. The questions to be resolved by the Supreme Court:

1. When an otherwise valid civil service selection process yields unintended racially disproportionate results, may municipalities reject the results and the successful candidates for reasons of race absent the demonstration required by 42 U.S.C. §2000e- 2(k)?

2. Does 42 U.S.C. §2000e-2(l), which makes it unlawful for employers "to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race ... ," permit employers to refuse to act on the results of such tests for reasons of race?

3. If, citing the public interest in eradicating political patronage, racism and corruption in civil service, a state's highest court mandates strict compliance with local laws requiring race-blind competitive merit selection procedures, does 42 USC §2000e-7 permit federal courts to relieve municipalities from compliance with such laws?

Typically cases of this type involve the plaintiffs establishing a prima facie case of unlawful discrimination resulting from an examination for appointment to a position in the public service because of race, color, religion, sex or national origin based on a statistical analysis of the test results.

If there is a statistically significant demonstration of an adverse impact on individuals because of because of their race, color, religion, sex or national origin with respect to the examination, the burden of going forward is placed on the entity using the examination to demonstrate that the examination administered is job related.

If the entity is able to show the job-relatedness of the challenged examination, the burden of going forward shifts back to the individuals claiming to have been adversely affected by the examination to prove that there is another suitable job-related examination available that does not adversely affect the candidates because of their race, color, religion, sex or national origin.

In New Haven it appears that although the examination had an adverse impact on certain candidates, no claim has surfaced contending that the test was not job-related.

Among the relevant provisions of Title VII, [42 USC 2000e] Section 2 ?Unlawful employment practices? are the following:

Prohibition of discriminatory use of test scores
It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin. [42 USC 2000e-2(l), emphasis supplied.]

Seniority or merit system; quantity or quality of production; ability tests; compensation based on sex and authorized by minimum wage provisions
Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer ? to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. [42 USC 2000e-2(h), emphasis supplied.]

Preferential treatment not to be granted on account of existing number or percentage imbalance
Nothing contained in this subchapter shall be interpreted to require any employer ... subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area. [42 USC 2000e-2(j)]

* Veterans and disabled veterans who served in time of war are entitled to have points added to their earned examination score if they receive at least a passing grade in the test.

The text of 42 USC 2000e(2) is posted on the Internet at: http://www.law.cornell.edu/uscode/42/usc_sec_42_00002000---e002-.html

Full post as published by New York Public Personnel Law on April 28, 2009 (boomark / email).