Last year, in Ricci v. DeStefano, the Supreme Court held that the City of New Haven engaged in discrimination against white firefighters seeking promotion by failing to certify their high-scoring results on a promotional examination. New Haven (unsuccessfully) justified its decision based on the fact that had it proceeded, it might have faced a disparate impact claim from minority firefighters who, as a class, did not fare as well on the exam. Employment practitioners recognized that Ricci created a Catch-22 for employers in the hiring and promotional context: avoid results that create a disparate impact at the risk of disparate-impact claims.
A recent Eighth Circuit decision, Torgerson v. City of Rochester, which, coincidentally, also involves firefighters, illustrates the perils of Ricci. Rochester considered forty-eight candidates for seven new firefighter positions. After objective tests and subjective interviews, the two plaintiffs, a female candidate and a minority candidate, ranked 40th and 45th, respectively. Nevertheless, because of their protected group status, the plaintiffs were asked to participate in additional interviews with the Fire Chief, along with nine other final candidates whose scores were higher.
Rochester ultimately did not hire the plaintiffs – a decision that was consistent with Ricci, given the plaintiffs’ low scores. However, noting the fire department’s lack of diversity and the poor results of the protected-group applicants, the Eighth Circuit concluded that a jury should be permitted to scrutinize Rochester’s interview process. In other words, because interviews are inherently subjective, and the City minimized but did not eliminate the risk of discrimination, summary judgment was not appropriate.
Although Torgerson is not a disparate-impact case, it aptly demonstrates the pitfalls of relying on Ricci. The City hired the candidates that performed the best in its hiring process, without regard to race or gender. However, underlying the Eighth Circuit’s analysis, is the fact that the test and interview results ultimately favored white-male candidates. Had the City ignored Ricci and reconsidered its procedures, it might have avoided this litigation. Consequently, even post-Ricci, employers are cautioned to consider the results of their hiring and promotional processes before employing or promoting the best performers without exception.
