Wednesday, December 30, 2009

Darned If You Do, Darned If You Don’t

As an employer, you likely have very few easy decisions to make in regards to your employees. Many actions taken on behalf of employees can bring unexpected and negative results – regardless of your intentions. In the November 2009 issue of The Nebraska Lawyer, there is an eye-opening article title "Discrimination and the 'Strong Basis in Evidence Standard' written by Julie A. Schultz that tells us just how careful employers must be when taking actions based on anticipated discrimination claims.

In 2003, The New Haven, Connecticut fire department conducted promotional exams for the purpose of promoting firefighters. The results showed a significant disparity between the scores of the Caucasian employees and the scores of African American and Hispanic employees. If the City used the scores, along with their promotion standards, the promoted individuals would have been almost entirely Caucasian.

Although the examination had been created by a neutral third party, and was deemed necessary for business, the City believed that using the results to promote firefighters would result in disparate impact claims from the African American and Hispanic employees who were not eligible for promotion. The City chose not to certify the results of the examinations, and did not award any promotions. Here’s where the “darned if you don’t” part comes in.

Despite the City’s best efforts to avoid discriminatory actions, they were sued by the group of individuals who were eligible for promotion based on the exam scores. In Ricci v. DeStefano, the court found in favor of the firefighters. The City was unable to prove that they would be subject to disparate impact liability, and that there was a “strong basis of evidence of an equally valid, less discriminatory testing that the City refused to adopt.”

So what is an employer to do? One may look at a situation like the City of New Haven’s and conclude that the only real “choice” is which kind of lawsuit they want to defend. Words of wisdom: tread lightly, especially when making race-based decisions. If you believe you may be subject to any kind of liability, it is best to seek the legal advice necessary to make an informed decision.

This blog post was written by Adriel Lage, Legal Assistant to Matthew Brick. Feel free to contact her at

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