A MCCA Roundtable Moderated by Brandon M. Fitzgerald
Diversity & the Bar thanks Alderson Court Reporting for generously providing court reporting and transcription services for this roundtable discussion.
On Monday, June 29, 2009, the United States Supreme Court issued its decision in Ricci v. Destefano. Virtually every public discussion regarding race has the potential to generate both “heat” and “light;” as a “reverse discrimination” case, Ricci was no different. Although the petitioners and the city of New Haven resolved their dispute, Ricci raised questions for the rest of us. One of the most important was whether Ricci mighthave an effect on diversity programs.
On November 16, 2009, MCCA assembled three highly regarded employment-law practitioners – Matthew Miklave, partner at Epstein, Becker & Green P.C.; Grace Speights, partner at Morgan, Lewis & Bockius LLP; and Lonnie Williams Jr., partner at Quarles & Brady – to engage in a discussion about Ricci’s effect on legal diversity. The panel was moderated by Brandon Fitzgerald, MCCA’s general counsel.
The conversation that resulted was so substantive and far-ranging that Diversity & the Bar could not publish the entire transcript in its pages! So we’ve posted the full exchange here.
Diversity & the Bar thanks Alderson Court Reporting Services for its generous assitance in reporting this discussion.
MR. FITZGERALD: Can someone tell me what actually happened in Ricci? For those of us who aren’t employment lawyers, we heard about this case with the white firefighters and reverse discrimination, and we’re thinking, “My company has a diversity program, what do I do?”
MR. WILLIAMS: It is a complicated story. Basically, it all started with a number of labor-related agreements that the city of New Haven had with unions that mandated the way the city went about promoting firefighters.
Part of those agreements dealt with having some type of test for promotions. I think they used the term “the rule of three,” where the top three candidates were considered. There were oral exams, interviews; and they had to pick from those three [candidates].
The results of the test did not bode well for many of the minorities who took the tests. The city was worried about being sued. There were people who were threatening to sue.
On the other hand, there were other people who said, “No, you have to certify the tests.”
Ultimately, they decided not to certify the tests based on the racial impact of the test results.
That’s when the litigation actually started. The firefighters who were on the pro-certification side filed a lawsuit in Connecticut.
Grace Speights
MS. SPEIGHTS:The city had taken a lot of pain to go out and hire an outside expert to do some studies about the tests, perform validation studies, look at the jobs, and look at what was needed for the jobs.
Matthew Miklave
MR. MIKLAVE: I think it is important to keep in mind the historical background that the city of New Haven faced. Firefighter promotions are few and far between in the city of New Haven. For a firefighter to become a lieutenant, captain, or higher is an extremely important decision, both for the firefighter and for the city.
The city had a very complicated formula, based on Connecticut civil service laws, other Connecticut state laws, its city charter, and this collective bargaining overlay, which the Court at one point in time characterizes as a “rational” decision-making process.
The city went to pains to get an outside consultant to create written and oral examinations that were job-related. This consultant interviewed current lieutenants and captains to find out the skills and qualifications necessary to perform those jobs. The consultant then over-sampled minority officers in order to make sure there wasn't a statistical disparity. In order to protect the integrity of the test, the consultant kept the questions from anyone in the department, so no officer was aware of the actual questions.
The test materials were drawn from approved firefighting materials. The city announced what materials were being used, including the chapters that were being used, so that all the incumbents could acquire these materials to prepare for the tests, and the city gave applicants a three-month study period to prepare.
Quite a number of firefighters used their own funds and a great deal of effort to study and prepare for this examination. I believe [one] of the candidates was dyslexic and went out and hired someone to read the test materials into a tape recorder, so the candidate could play them back, so he would know what was on the test.
You could see, just by describing that, these tests were very important.
I also think that another fact that shows these tests were important was the extreme public involvement in the certification of the results themselves. This was not a down-played employment situation by any stretch of the imagination. It was very public event, and obviously, a lot of pressure was brought to bear on both sides.
MR. WILLIAMS: However, I have to say that when you read the opinion of the Court and then you read the dissent, they come out with vastly different readings of those facts below because, as you said, when you read the majority opinion, you understand where they're going. I think the bottom line is, from a legal standpoint, most people who have read the District Court opinion felt that, under existing law, it would be upheld because of existing law. The way the Court did the analysis was pretty basic and at most, you could fault the District Court for maybe saying summary judgment shouldn't have been granted.
Maybe there should have been a court or a jury deciding the facts of whether or not the city had met their burden. But at least from my standpoint, though, the test the Court announced was new and different in terms of the analysis that most of us have lived with for a number of years.
MS. SPEIGHTS: There are two points that I think are interesting here. First, I think, at minimum, the Court should have sent the case back for further proceedings because the record, as it stood, did not set up all of the elements that you need to determine if the disparate impact was defensible.
The Court just assumed that [there was] disparate treatment because of all of the things that it knew had occurred. There was not, at the lower court level, any real litigation of the validity of the test.
Second, there may have been another way to defend the case. Query whether this should have been defended on a disparate impact analysis basis or as a voluntary diversity program if the city could show that African Americans were traditionally under-represented.
With this Court, it may not have been different, but I still question whether that would have been a better defense.
MR. MIKLAVE: I think we have to be careful about being too hard with the city of New Haven because dealing with these issues in a public forum is extremely difficult.
For example, I challenge any of our private sector clients to ever put in the record what their attorney advised them about disparate impact analysis, which became a key point in the litigation.
So I think we need to be a little reserved in terms of our criticism of the city of New Haven because you deal with the hand you’re dealt. They had a system imposed by state law and collective bargaining agreements which required the test to be certified by this independent body that was not subject to review by the city council, although there was a question as to whether the mayor could use his executive power to overrule that decision.
I think that the litigators probably did the best they could with the record they had.
I think you can suggest that there were additional steps they could have taken at the time before the litigation started that might have made it more defensible, but once litigation started, I'm not sure there was a lot they could do about it.
MR. WILLIAMS: I agree. The problem I think the city faced is that they didn't litigate the rule the Supreme Court came up with. None of us, necessarily, would have expected the Supreme Court’s result. I do believe a good litigator/trial lawyer would have approached the evidence differently if they had known the test.
There is no justification that I can see, legally, other than they can do what they want, for the Supreme Court not to have sent it back.
That's what they always do. They never make the factual analyses that they did. When I was reading the opinion, as much of the opinion is spent on why it shouldn't go back as it is on the legal analysis.
And that's the real question: Why didn't they send the case back?
MR. MIKLAVE: I agree. I think if there is criticism to the Court's decision, there are a couple of big touching points. Certainly, that is one of them.
I think the second is whether the action by the city of New Haven in validating the test and not certifying the results was actually making a “race-based decision.”
That's something the dissent spends a great deal of time looking at and the majority almost glosses over. I think I was most surprised by this almost leap that any time race plays a factor in your analysis and you make a decision based on that, then a disparate treatment analysis applies.
If we had looked at the test, not in terms of rac[e] or ethnic[ity] or gender, but [in] terms of content validity, meaning whether the test fairly tested the skills and knowledge needed for the jobs, and decided these tests just didn’t test what it takes to be a good lieutenant, we would not have validated that test. I don't think anyone could say that was a race-based conscious decision whatsoever.
It seemed to me — and I think Justice Ginsburg touched on this in her dissent — the analysis could have been that they looked at the statistics, the city of New Haven concluded something was inappropriate about those statistics, and so it treated everyone the same. It tossed out the test result for everyone.
And I think that is the problem with Ricci for employers on a going-forward basis. When do you look at these statistics and what do you do about them when you don't like the result?
The Supreme Court suggests that any time you make a decision based on statistics alone, you are in a race-based disparate treatment analysis, and I think that is one of the biggest shocks of the Supreme Court's decision.
MS. SPEIGHTS: I think a lot of that will depend on what you have done before then in terms of actually designing and implementing the test.
The problem here, and it goes back to your point about what the city went through, is that this was a public arena. Everything that they did was in the public view.
The fact is that they had hired all of these outside consultants who interviewed people about jobs, interviewed firefighters about what they do, and performed a full-blown job analysis; I think the Supreme Court felt “We've already seen from the record what you did. So, it had to be race.” That's the problem. It is the whole public nature of how it was done.
MR. MIKLAVE: I agree.
MR. WILLIAMS: When you look at some of the commentators who have written about Ricci, some — the more cynical; and I'm not adopting this view — are very clear that they think the Court decided the issue, instead of sending it back, because the court was concerned that it would probably have to go all the way back to the District Court for a further factual development and analysis; and by the time it came back, the result that they reached, even with the legal standard, may not have the same makeup of the Court, because it would be at least be a couple of years before it went all the way back to the District Court.
And with a 5-4 split, that's the cynical view of why they made the decision. They wanted the rule announced and the case done, as opposed to just announcing it. At least one commentator said there was a Sixth Circuit case from Memphis decided hours after Ricci of a similar character, a reverse discrimination case, and the Court accept[ed] cert and sent it back under the ruling.
Everyone said, “wait a minute; why didn't you send them both back?” That's still a question that the concurring opinion answered by saying because there wasn't any issue; but the Supreme Court usually doesn't make those decisions.
MR. MIKLAVE: Let me suggest, as well, that may have been as much a result of the posture of the litigation as anything else. Remember, both the defendant and the plaintiff in the trial court moved for summary judgment.
I imagine the plaintiff moved for summary judgment by saying there's no question that there is no disparate impact; and, therefore, if the city had validation studies that they could have introduced to show there was disparate impact, that was the time to come forward with that evidence.
The fact they were unable to do so suggests to me it just wasn't there, and there was really no basis for it.
MR. WILLIAMS: But the test was different. Again if I try a case, I need to know what the standards are. If the standards change, the evidence I put on might change. You can always argue the facts are the facts, but we all know that's usually not the case.
The facts can be presented in a light most favorable to what you are trying to show, and the legal standard changed so much.
I grant you, I don't think the city could have met the standard. I don't think most people faced with an objective test, as opposed to a more subjective process of selection, meet that standard of strong basis in evidence because the Court has rejected some of the older standards. I read this opinion as rejecting the Equal Employment Opportunity Commission [EEOC] guidelines, even though they really aren't discussed that much.
MR. MIKLAVE: Not discussed at all.
MR. WILLIAMS: The dissent does, but they basically overruled them because – if my memory is right – the results did not meet the EEOC guidelines in terms of what they look at as potential adverse impact.
MS. SPEIGHTS: The interesting thing — on that point – is that there have been other courts that have found disparate impact even when it wasn't a disparate impact under the EEOC 80-percent rule.
MR. WILLIAMS: Not anymore, though. I agree. There was a long line of cases that they implicitly overruled without really discussing them. Of course, some people say they basically gutted the 1991 Civil Rights Act without declaring adverse impact violative of the Constitution. Well, at least five of them did.
MS. SPEIGHTS: Justice Scalia said that's to come.
MR. MIKLAVE: I think he refers to it as “the evil day.”
MR. WILLIAMS: That was an interesting opinion. I think when this opinion was written, they probably knew that that day may not come – at least any time soon. I think it will be tough to get five [justices] to basically declare something that has been on the books that long [to be] unconstitutional.
MS. SPEIGHTS: I don't think we're going to be stuck with this decision that long. I think, just like Congress took care of Lilly Ledbetter, I think there's already talk about trying to overturn the decision.
MR. MIKLAVE: But that's where Justice Scalia's concurring opinion is so important. While Congress can change the way the Supreme Court interprets the law in a statutory context, the Supreme Court's interpretations of constitutional mandates cannot be changed, but [only] by a constitutional amendment.
I think Justice Scalia is forcing us to go back to Griggs vs. Duke Power and take a long, hard look at that decision and the entire adverse-impact analysis coming forward.
And he is setting the stage, I believe — and I don't know how far this will go — but I don't see any of the five justices in the majority retiring any time soon.
MR. WILLIAMS: That's true, but here's the problem: It is one thing for Scalia and others to want to, in essence, overturn Duke Power. I understand that. There's a number of opinions that some of the members [of the] Court would like to overturn. It is much different though for them to attack the 1991 Civil Rights Act because that act was not that controversial. It passed overwhelmingly.
No one really tried to touch it. They added on. When they've added on, like Ledbetter, it's been overwhelming; and now the Court is attacking not just the "liberals," but they're attacking legislation that passed overwhelmingly. Granted, they can do it; but that's a tougher thing I think, to get five people to do. And quite frankly, if there was a time to do it, this was the time to do it, in my opinion.
If they were going to do it, I think they didn't do it because I don't think they had the five votes to do that, and because I don't know if they'll have them in the future. But you are right; if Congress does attack it, then they'll have the issue. The issue will be front and center.
MR. MIKLAVE: I also found it interesting. I read two different sub-themes to the Supreme Court's decision, and I welcome your comments on this.
One was a frustration and an intolerance, much like we saw when they changed the law with respect to workplace harassment and supervisory liability, a lack of tolerance for using race as a surrogate for employment decisions, good or bad.
Really trying to bring the promise of Dr. Martin Luther King full front to judging every man and woman by the content of their character and not the color of their skin. I really believe the five-justice majority believes that's what they're doing. I think we can debate whether or not they really are, but I think there's a sincerity there.
I also detect an intolerance for local officials taking the easy way out, and making easy political decisions.
One of the opinions — I think it was Justice Alito's concurring opinion – sounded like Claude Raines in Casablanca, as he was "shocked – shocked!" to see political concerns taking place in the city of New Haven.
MR. WILLIAMS: I think the ultimate goal here is to do away with the disparate-impact analysis, and I can understand that argument.
That was controversial 30-some-odd years ago because you have gone beyond the realm of intentional discrimination. You are not going back historically and saying is there a record of historical discrimination like the courts have talked about, but now you are looking at the impact, even if there is neutral treatment.
The question, though, from a conservative judicial standpoint, is the function of the Court given the 1991 Civil Rights Act.
I could go back and pull out speeches from McCain, from Hatch, from a number of very conservative Republicans who would say to the Court: “You can't do this. This is not your job.”
You could argue they've legislated by not making it unconstitutional, which they have a right to do, but what they have done is they legislated around the 1991 Civil Rights Act because, they have clearly adopted disparate impact in that act, but it is not the same as it was before Ricci.
I could make a very interesting argument that they are legislating.
MS. SPEIGHTS: Disparate impact was adopted in the 1991 Civil Rights Act as a result of the erosion that was going on after Griggs. It was a clear legislative statement. Congress said we don't like the erosion that is happening with the Griggs vs. Duke Power.
MR. WILLIAMS: I think that it will be an interesting discussion in law school, as to whether that is exactly what happened. We now have the conservative Court legislating. It is up to Congress to see it’s going to do.
I'm not so sure I agree with you that Congress is going to do anything. I don't see our current president taking this issue on. I really don't. I don't see this as something that is going to get the ire up, unlike the wage case, which was just ridiculous. That was just hard to justify, but I'm not so sure about this one.
MS. SPEIGHTS: You think that remains to be seen?
I think that the folks who were outraged by Lilly Ledbetter, which dealt with compensation discrimination, will be just as outraged by this decision because this whole concept of disparate impact is applicable to compensation in the workplace too. When companies are doing base pay or merit-based increases, employers typically do a disparate-impact review to see if there's a disparate impact on women and on racial minorities.
I think some of the same driving forces could be here.
MR. WILLIAMS: That’s interesting. I'm thinking if I make the decision to change a compensation study simply because it impacts someone's gender and I reverse it based on that – will Ricci be implicated? The language of the Fair Pay Act and the Civil Rights Act are not identical, but that's an interesting analysis; one I haven't thought of.
MS. SPEIGHTS: What we have to be mindful of is that, although the Ricci case was a testing case, it is not limited to testing. Any type of selection criteria that you use in the workplace, to the extent that you are doing disparate-impact analysis on those selection criteria used for promotion, compensation decisions, and reductions in force, the Ricci rule would be applicable.
MR. MIKLAVE: I think that's right, and I think that's the ambiguity that flows from Ricci on an ongoing basis. Take the corporations, law firms, and other employers that have adopted, as a laudable goal, creating and protecting a diverse workplace and a diverse group of candidates. Given the unprecedented economic conditions we have been facing lately, you are forcing these companies to make difficult selection decisions.
Normally, you would advise your client to worry about how their employment decision impacts the diversity of the workplace.
The mere fact of worrying about the diversity impact, however, presents you with very difficult issues under Ricci and how to deal with them.
I think the problem that Ricci portends is that, if we were litigating for the city of New Haven, we all would have done a lot more to challenge the validity of the test by hiring the experts, hiring the right people to conduct the analysis, to determine what led to the adverse action: why was there adverse impact against minorities; what can we do about it; and are there more appropriate means we can use to reach the same decision?
In a corporate downsizing mode, usually, your decision-maker is not in the position to hire a Ph.D. to conduct the analysis in order to do the very analysis that they need to carry out, because they're facing an economic decline. That's the problem.
MR. WILLIAMS: I'm not sure that Ricci does relate very well to a lot of decisions made in corporate America, in the sense that, in most instances, there is no testing, although I agree it applies beyond that.
Normally, the analysis is made on an ongoing basis. It is not made after a test. In this case, you have the test, and then you have these rules in place that basically dictate, as a result of the test, who's going to get promoted.
In the corporate environment, you're usually going to have some objective criteria. Nowdays, a lot of objective criteria.
The other difference is that your decisions aren’t going to be in the public eye, and you’ll have human resources [HR] professionals and lawyers looking at the decisions very strongly in terms of when decisions are made and why any changes are made to those decisions.
It is going to be a much more difficult factual analysis to make vis-à-vis a private employer. I do think you will have people laid off trying to get that information, but New Haven is a city. It’s public.
In a corporate environment, it is going to be much more difficult for people to find out whether or not they were always on the list, or whether or not the list got changed after something else was done; and that goes both ways.
That may mean a lot of litigation to find out, or it may mean people are not going to be able to make that case. I am not sure what will ultimately happen.
MR. FITZGERALD: Should the city have said, “We don't care what the union has said or mandated,” and simply just gone with an entirely different test?
MR. MIKLAVE: I'm not sure the city, under Connecticut law, was free to simply disregard its collective bargaining agreement, which is one of the difficulties that the city had.
They had obligations imposed by city law, they had obligations imposed by state law, and they had obligations imposed under the collective bargaining agreement.
I think there should have been more thought given to whether a pen-and-pencil test for the promotion was entitled to as much weight as it was; whether the 60/40 oral/written dichotomy was appropriate; and whether the questions themselves were directly related to selecting the “best” firefighters for promotion.
One of the things that was done – and it was laudable in the sense of trying to protect the integrity of the test, but it may have been dooming for the legality of the test itself – was that the test questions developed by the outside expert were never shared with the department personnel. The officers who did the job did not have the chance to say, “is that a good question?” Or ask if the question was appropriate: “Does it make sense for this job in New Haven, Connecticut?”
I think if they had done that, it might have helped to determine what was causing the adverse effect in the first place.
But we all rely — whether it's companies or law firms themselves – upon these somewhat subjective evaluations. And let me suggest to you, whether it is a performance evaluation for an associate, when we are making promotion decisions, or whether it is your book of business (which is just an objective criteria but has a very subjective element to it) we all face these challenges of what are we really measuring. Are we really measuring success in the corporate environment? In the law firm environment? Or something else?
I will remind us that we have all signed on to the “Call to Action” requiring us to promote diversity, retain diversity, and further diversity. All our law firms have determined that that it is an important goal.
When we go through the painful discussions, as many firms have done in the last year, to separate individuals, to what extent have we taken into account the need to maintain a diverse work force? Does that create the very Ricci problem that the Supreme Court has identified?
I just think it is extremely difficult.
MR. WILLIAMS: It is. Unfortunately, my cynical side says, [from] statistics I'm seeing, firms have not considered it enough. In the law firm context, you have a situation where a group of people can't necessarily explain why one person, regardless of color, made it, and the other did not.
And you certainly might raise Ricci, but it is a much different situation. Because remember, the city had to do a written test. It reminds me when many law firms thought about — and some may have been doing – some type of psychological-aptitude testing. There was a science out there of saying you can predict who will be a good lawyer, a good business developer, all those things; and some people thought about adopting those. I thought we would have been in that situation, but I don't know of any law firms that give tests on things like that.
I think it will be much harder to pinpoint whether race was a factor in a decision, because we all know no one is going to talk about it, especially in light of Ricci. I think that's the same thing that's going to happen within corporations, although it is an issue. It is an issue not only from what they do, but it is also an issue, quite frankly, of companies maybe thinking that “I don't have to spend the money to do the disparate-impact analysis because I have some leeway because of Ricci because it is a harder argument to make under disparate impact.” In other words, if I don't do it, maybe I can always argue, as the Court clearly says, as a defense that I didn't do it because I didn't want to consider race.
Perhaps the companies just won’t do the analyses that we all work with now that they do, at least the larger layoffs.
MS. SPEIGHTS: There may be some that will do that, but I doubt that you're going to see a great deal of that.
When you think about the reason for not doing the analysis, it’s the fear of a reverse discrimination case. I've been practicing 27 years with a very robust employment litigation practice for major companies; I've handled two reverse discrimination cases in my career.
I'm advising my clients that they need to be doing the disparate-impact analysis on all of the selection criteria– even after this decision– because the risks of a reverse discrimination case [is small compared to] an employment class action by a huge class of African Americans or women. There are essentially two situations where I think you get reverse discrimination claims: one, public clients, because everything is so public; and two, employers who may be private, but who effectively announce that they're engaging in reverse discrimination. It goes to your point about how things are done.
MR. WILLIAMS: Right.
MS. SPEIGHTS: From that standpoint for corporate America, I don't think it really changes much because I think, from a practical standpoint, you have to balance it.
MR. MIKLAVE: I think that's a fair comment. I think it would be the wrong message for corporations to get that they should do these analyses through outside counsel and make sure you don't talk about them. I don't think that's what any of us are suggesting.
MS. SPEIGHTS: No.
MR. MIKLAVE: What I think we are suggesting is go the next step, complete the loop on the analysis, make sure your selection criteria are content-neutral, and make sure you can articulate and identify the reasons those criteria have been selected.
And then, to the extent that your disparate-impact studies show there is a disparate impact, don't stop the way New Haven did; drill down and figure out why that was caused. As we know from the Supreme Court decision in Connecticut v. Teal, just because you can't identify a particular aspect of the decision which resulted in the adverse impact does not mean you're off the hook from an adverse-impact case.
You have to make the effort to try to identify what it was. So if you're relying upon performance criteria, you have to sort of drill down on that somehow to find out where that adverse impact is coming from; and I believe that Ricci holds if you can establish the criteria that resulted in the adverse impact, and you can show that there were alternative means that you could have used to achieve your legitimate business ends, you will be able to defend both an adverse-impact case and an intentional discrimination Ricci-type claim.
MR. WILLIAMS: I guess the cynical side of me asks whether or not that's still good law, in light of Ricci. I look at the end of the opinion where, initially, the Court is talking about that the city is saying “I did this because I didn't want to get sued for adverse impact.” And there was clearly precedent in the circuit courts that supported the city's concern. But the Court, at the end, says if “the City certifies the test result . . . and faces a disparate impact suit, then in light of our holding today, it should be clear that the city would avoid disparate impact liability based on the strong basis in evidence that if it had not certified the result, it would have been subject to a disparate treatment liability.”
I think that puts employers in a quagmire because I'm not really sure what that means. Does that mean that I can look at the results of the layoff list and say, “this had an adverse impact on minorities, and I'm going to change it and drill down to figure out why?”
But if I change it, by definition, the result is going to be that more minorities will stay and those who do not make it may go. Can I say “I don't have to do that” simply because of Ricci?
And I don't know the answer to that, but it just seems to me that it's not something that anyone has really analyzed in terms of how you deal with that issue.
MR. MIKLAVE: It is interesting. I think a firefighter for New Haven, an African American who filed suit against the city on October 19, 2009, is going to be testing that paragraph very, very closely.
I'd be interested to see what the Second Circuit and the district court do. My suspicion is that they will throw up their hands and say, “let them take care of it upstairs.”
I do agree there are issues of what to do in light of the Ricci case from a disparate-impact case. I don't think it is an easy decision for most employers. I think they do have to go the extra mile. Whether that takes place in public or private, most of the stuff comes out in the course of discovery. In any large force reduction nowadays, there is going to be a lawsuit of one kind or the other. I think the Supreme Court has pretty well indicated that there's a road map for employers to follow, but they really have to close the loop on that.
MS. SPEIGHTS: One thing I do think is clear from this — and it will be interesting how we advise our clients and carry this out — is that the Court is very clear in giving broad discretion in what employers do pre-implementation. There's no question here about anything you're doing in the design stage. Instead the Court was very concerned here about the legitimate expectations that these five had once they'd taken the test, the announcements were out, and everything was complete except for certification.
So, to the extent that employers can put things in pre-design, look at their numbers, and make changes before decisions are announced — and that can be hard — they're going to be much better served and be put outside of this decision.
MR. WILLIAMS: I think Grace's point before is very key in terms of how clients have to look at this. Statistically, she's right. When it comes down to economics, the chances of being sued under a Ricci analysis, as opposed to a traditional adverse-impact case — which will be a class — is an easy call.
Until it changes, where you can argue the economics tell you not to concern yourself with the adverse impact, I think clients have to continue to do what they do, and maybe even, as you said, Matthew, drill down. The question is, is that ever going to change?
And unless the Supreme Court overrules or at least makes adverse impact unconstitutional, that probably won't change.
MR. MIKLAVE: I think we should caution employers as well that what we're not saying to them is, if your numbers come out bad, just change the numbers.
MS. SPEIGHTS: Absolutely.
MR. MIKLAVE: That's a big mistake. I think some corporate HR departments may misinterpret Ricci to that extent and simply say –“if we change the numbers, we're okay.”
MR. WILLIAMS: Matthew,let me play devil's advocate. I have a mandate now. I have to get rid of people – not tomorrow, but now. I can't take six months to drill down, because my mandate is to cut now for this fiscal year; so if the mandate in these economic times is that I have to do something within the next two weeks or 30 days, and I'm looking at these results, and there is a clear adverse impact on a group of people, what then do I do?
MR. MIKLAVE: I think it is a very difficult choice, under that kind of timeline, to determine how to do that.
First, I would suggest that there's nothing inappropriate for setting goals or objective standards; but that is an issue when you start changing individual numbers. I think the Supreme Court’s decision makes that rather clear, with their focus on the effect on the individuals. There is very little tolerance at the Supreme Court level for penalizing one individual versus another because of the color of their skin on either side.
And so, to the extent that there [are] already identified candidates, as opposed to generic numbers or goals or objectives, I think it becomes very problematic; and I would counsel an employer to be very careful.
MR. WILLIAMS: So, the expectation the Court talks about is important.
Does that apply really when no one knows what is going on? No one knows what the criteria are? And I'm running three different tests. Say run it under this criteria, run it under that criteria, and run it under other criteria. All justifiable.
Does that protect me at all? I don't know the answer to that, but I know a lot of employers run more than one, and then look at it at all levels. Does that fit under Ricci? Those are the questions that I can't answer.
MR. FITZGERALD: Matthew, you talked about penalizing, and the dissent talked about whether the firefighters had a right to expect promotions. In some sense, every employment “decision,” whether to hire someone or to not hire, is a zero-sum game. In the real world, any time you're taking a factor into account – whether race, gender, you have a diversity program – isn't someone always being penalized in some sense?
MR. MIKLAVE: I think that's one of the messages from the Supreme Court's decision; and I think that's where Ricci may have a broader impact than we consider at the present time.
I think what the Court has specifically emphasized, with respect to affirmative action and diversity programs, is the effort to ensure equal opportunity is an important and legitimate objection. But the Court seems to be setting a different standard when considering attempts to create equal results. I think the Supreme Court is pushing back on the concept that it is permissible to change the results in order to end up with equal results, or results consistent with your otherwise appropriate diversity goals.
The majority went out of their way to say equal opportunity programs, making sure you reach out to minority applicants, and to make sure that your labor pool reflects the surrounding community are perfectly appropriate.
Going the next step, however, is a problem.
I believe that the Supreme Court suggested that an equal opportunity to an outcome is what's expected; and so, in the New Haven case, the officer or the candidate that went out, purchased their own supplies, studied 8 to 13 hours a day on their own time in order to prepare for that exam, expected an equal treatment for that exam, and not to have that exam tossed out.
MR. FITZGERALD: Has the Supreme Court taken expectations and elevated them to a new standard that employers and other people have to take into account?
If I'm a company, what is the practical advice as to what my employees expect to happen if I have a test or if I'm doing promotions?
MR. MIKLAVE: From my standpoint, having litigated, as we all have, hundreds of cases, I think every employee comes in with an expectation of fair treatment. Anyone who has a three-year-old or five-year-old that says “that's not fair” knows we're operating under the same criteria. I got this the other day: “You made my older brother wait to get a cell phone until he was 16. You let my younger brother have one when he was 11. What's going on with that?”
MR. WILLIAMS: Supreme Court changes . . .
MR. MIKLAVE: . . . decision-making.
But I think from the standpoint of the decisions, Grace makes a very good point. Building up the expectation with a great deal of pre-result publicity in terms of how this test is going to be used, and then yanking the rug out from under them, I think, contributed to the outcome of the case.
I don't think it completely explains the outcome of the case, but I do think it is a big part of it.
All of our clients have processes that use some kind of objective criteria to make employment decisions, and I will guarantee you very few of them are confidential. There are three forms of telecommunication: telephone, telegraph, and “tell an employee.” Everybody knows what people are relying upon. They expect those results.
If you are using performance appraisals, for example, and that becomes known, they expect those performance appraisals to be consistent, objective, and verifiable. The problem is often performance appraisals are anything but consistent, objective, and verifiable. That's where the tension comes in.
MR. WILLIAMS: I think the difference is that most employers are not bound by a procedure unless they're under some collective bargaining agreement, and the employee has no expectation of how information is going to be used. Here, the firefighters knew the results of the test, if certified, and how it would be used.
I think employers outside of this area do have the ability to look at things on a lot of different levels — not just adverse impact.
For example, many will look at how the results will impact the management of the areas impacted. Am I taking away people with a certain amount of expertise? Do I need to make all those changes?
I think as long as they're looking at it broadly and they're reviewing the criteria on a number of different levels so that no one is going to be able to say that all the evidence demonstrates that you're doing this because you want to change the racial makeup, then you're probably going to be okay; but that is yet to be seen.
But I do think the idea that they knew what was going to happen and there really wasn't a lot of leeway, at least according to the majority, has meaning.
MR. MIKLAVE: Let me play devil's advocate for a moment. What happens if you are in a corporation that has a diversity program where management has decided that they need to keep experience, that's a key criterion for them; and this is going to have an adverse impact on your diversity program because you're outreach efforts over the last five years have produced a diverse pool of applicants that is not reflected among the higher-scoring, longer-longevity individuals? How do you handle that?
MR. WILLIAMS: Under the hypothetical, there are two inconsistent goals. They make a decision they need to keep experience. When that decision is made, unlike the city's contract years ago, any competent management has to know that's impacting diversity.
So I would argue [that] when they make that decision, that's where the problem is. They should never make that decision, but make a decision that allows them to reconcile both.
Now, we all know that's very challenging; but that's why someone is being paid the big bucks. Even if you're making the decisions on whether to accept a proposal of a union under a collective bargaining agreement, these things have to be looked at because it is not going to be a defense, as it wasn't for the city, that “I had to do it this way.”
MR. MIKLAVE: Right.
MR. WILLIAMS: I think those are tough decisions in terms of that.
MR. FITZGERALD: What, practically, do I do?
MR. WILLIAMS: We're trying — we know, we've been told by management that we need to have a reduction in force. Our job is to decide what that criteria are going to be.
If we decide that criteria is going to be experience — period — and we walk out of the room and that's our decision, well, we've sort of made the decision that we probably will impact diversity. Someone during the discussion needs to raise that, and that needs to be discussed right then.
I'm suggesting that maybe what you do in that situation – if you don't know how that would impact the work force on a number of different levels – is that you might want to run four or five different sets of criteria and take a look at them, as opposed to making the decision in terms of one set of criteria.
If you decide to use experience, that's objective, and I do think you could be there because, if you make that decision, get the results, and change them later, the real difference is there's no expectation. However, maybe you'll have some judge somewhere that might think it fits into a Ricci situation.
MR. FITZGERALD: In your collective experience, have you had your clients found success in having multi-prong tests? For example, in your hypothetical, I'm in a room with people. I'm discussing the reduction-in-force criteria. Could I say we want to take diversity into account, experience into account, perhaps longevity into account, and those are the things we look at when making those decisions?
Has that been effective? Or is it more effective to say I'm going to pick one thing and wherever that leads me, I'm going?
Brandon Fitzgerald
MR. WILLIAMS: My experience is that employers look at a number of different factors as proposals. Then they look at the effect of those proposals on a number of different levels, more than diversity, any of that. They look at it from the standpoint of, “did I meet my economic goals of whatever reduction I'm trying to get? Can I still run my business at various levels? Can I still get the product if I'm a manufacturer out? How is that going to affect overtime?”
I like using the term "diversity," but let's be honest; a lot of times what we're looking at is cost avoidance. The one big cost of a layoff is a class-action lawsuit.
So if you are the HR person and you don't do this analysis and your goal is to cut costs, you probably aren't going to have your job very long, because this will destroy an economic reduction in force very quickly.
MS. SPEIGHTS: The interesting thing about the reductions in force, at least in terms of clients that I work with, most of the time is that age is the issue, as opposed to African Americans, women, whatever. Ricci would apply to age cases, because you can bring a disparate-impact claim under age, but there's no reverse discrimination claim that can be brought under the Age Discrimination in Employment Act.
So you still have to do your analysis, at least for age, because this is not going to impact that.
MR. MIKLAVE: Of course, some state law is contrary. In New Jersey, you can have a reverse age discrimination case. Anyone over the age of 18 is protected.
MR. WILLIAMS: I think there are a couple of states. Clearly, there are not many states.
MS. SPEIGHTS: I agree, but I am talking about the ADEA. There are only a few states where you can have a reverse discrimination claim based upon age. So, in terms of doing an age-impact analysis, you still need to do it.
MR. MIKLAVE: You also have to do your age analysis anyway, because you have to do your notices under the Older Workers Benefit Protection Act to get the protection of the releases.
MS. SPEIGHTS: That's right.
MR. FITZGERALD: I'm in-house counsel of a company. I have decided I want a diversity program. It is good for the bottom line. How do I have a diversity program that doesn't subject me to legal liability under whatever case that's out there?
MS. SPEIGHTS: You're still under the Johnson-Weber line of cases that indicate that diversity programs are okay if they're designed to eliminate manifest imbalances in traditionally segregated job categories, and they do not "unnecessarily trample the interests of white employees."
Diversity programs that seek to include people, as opposed to excluding people, are fine. The goal is to try to broaden the pool to make sure that it is inclusive. You still can't have quotas, but a diversity program just as it would have been designed under the Johnson-Weber test is fine. I don't think Ricci changes that.
Lonnie Williams Jr.
MR. WILLIAMS: I agree, because many of those programs are trying to increase the availability of qualified applicants. Deciding “I'm going to go to this law school versus that law school” is not going to get you sued.
You can still try to increase your pool and hope that you don't have to, on the other end, make decisions that might negatively impact your pool.
MR. MIKLAVE: I agree with that. I think that's exactly what the Supreme Court was referring to when they talked about improving the opportunity — equal opportunity. I think that's something that didn't change with the Supreme Court's decision.
MR. FITZGERALD: Does my diversity statement need to read a certain way? Can I say, “Look, I want a diversity program. I want to have a work force that reflects America”? Is that good enough?
MR. MIKLAVE: I'd stay away from quotas or fixed guidelines about how many applicants each year come from what minority or majority pools. But I think statements and goals, where there are real teeth behind them, and real outreach efforts are OK. No one is looking to have a diversity program on paper that doesn't achieve results. That includes real outreach to increase and diversify your workforce. I think that's absolutely required and is consistent with the Supreme Court's decision.
MR. FITZGERALD: Do I have to do some sort of internal finding that says there's been less opportunity at my company for group X, Y, or Z?
MR. WILLIAMS: In terms of having a diversity program?
MR. FITZGERALD: Yes.
MR. WILLIAMS: In my opinion, the answer is no. There could be a lot of reasons why you're going to do it. That could be one of them, but it doesn't have to be the only reason. There could be an economic reason that you want to do it, perhaps to improve the relationship with your business clientele.
There could be all kinds of reasons that you could do it; and I think most diversity statements are broad enough to capture all of the other reasons, as opposed to making a specific finding of some historical problem.
MR. FITZGERALD: Grace, you mentioned the Johnson-Weber cases. Could you talk about those cases and what, as a corporate counsel, I should know about that line of cases?
MS. SPEIGHTS: They dealt with whether or not you could have “diversity” programs without violating the law. In the context of looking at reverse discrimination, the Court in both cases said diversity is a laudable goal as long as you don’t trample on the rights of others.
MR. FITZGERALD: Some companies actually use tests to do intake. They use it to screen for people before they make a leadership change.
Is that okay if the test happens to have a disparate impact on a particular racial group?
MR. WILLIAMS: Are you talking about today or before Ricci?
MR. FITZGERALD: I'm going to say both. Give me the pre-Ricci and the post-Ricci world.
MR. MIKLAVE: I believe, fundamentally — and I believe all the social science reflects this — pen-and-paper tests are very bad predictors of future performance and tend to have an adverse impact on underserved populations. You have to use those tests carefully, so I think they might be used maybe as only one portion of a screening test, but they cannot be used exclusively.
MR. WILLIAMS: You know when I was in high school, I remember before I worked at Jack in the Box, I had to take a math test; and I do believe that many employers sometimes at lower levels still give basic skills testing before they will consider an applicant. And there has been some litigation [and] adverse impact cases about that. The EEOC has criteria that they try to impose on employers. Generally, I would agree that tests aren’t necessarily a good idea because they can increase litigation.
After Ricci, it's hard to see how giving a basic skills test is going to implicate Ricci because if, in fact, you are giving this basic test — math, whatever — and no one who doesn't pass it is considered, then you're probably to be okay in terms of any Ricci analysis.
However, the chances are that you still may be subject to an adverse-impact case; and I don't necessarily think Ricci is going to save you on that.
So, again, I think it goes back to Grace's point. I don't know that, based on Ricci, I would think I could do things like that weren't a good idea before.
MS. SPEIGHTS: There are a lot of companies who use tests. You don't rule out all tests just because they have a disparate impact.
The issue is whether or not the test has been validated for the specific job at hand. Even if a test has been validated you can still have a disparate impact; sometimes that happens. But the question is, has it been validated? And the interesting thing in the Ricci case is that the Court, whether we like it or not, gives some clear guidelines about validation. Basically, the Court provides criteria that employers can look at and determine what they should be doing with their tests.
One, tests must be created by independent experts with specialized expertise. Local validation specific to the employer's work force, rather than mere reliance on transporting validity studies, is also key.
Doing job analysis, on-site research, ensuring that the tests correlate directly with the job that's at issue, and then using a diverse panel of testing experts are also key. If you go through all that and still have disparate impact, you're probably going to be able to defend that case.
MR. WILLIAMS: But you could defend that case before Ricci.
MS. SPEIGHTS: Yes. Ricci doesn't change that. The problem is that you have a lot of employers who just use generalized testing, which hasn't been validated for the skills that are needed for particular jobs.
MR. MIKLAVE: And I think that comes back to my prior point. One of the themes that I read through the Supreme Court's majority decision is a frustration that, after all this time, some people don't get it. We saw that when the Supreme Court changed the rules with respect to imposing liability on the basis of sexual harassment by a supervisor.
I think the Supreme Court reached the conclusion that, “after so much time of [sexual harassment] being in the headlines, you guys aren't getting it, clean up your act,” and the workforce responded by cleaning up their act and adopting policies and practices that have decreased, substantially, the number of EEOC filings on the basis of sexual harassment. So I think the proof is in the pudding.
MR. FITZGERALD: As in-house counsel, what should I know about what the EEOC has said in this area?
MR. WILLIAMS: We have to advise our clients that the EEOC, in and of itself, can cause you problems in terms of their investigation. Their investigation can lead to lawsuits. So, from a practical standpoint, you need to be aware of the EEOC guidelines and the regional office position they're taking, because they do differ a little bit occasionally and make decisions with that knowledge. Going through a large EEOC investigation is costly, and many times, even if the EEOC decides not to file suit, there is another lawyer who is aware of all of this, and there will be a lawsuit that comes.
Again, the issue is not only defending it; the issue is trying to avoid it ever being filed.
MS. SPEIGHTS: Just like we were talking about validation and how this case doesn't change that, the EEOC has always said that your selection criteria, not just tests, need to be validated.
MR. MIKLAVE: And they give very detailed guidance. I'm sure they're going to be revisiting that guidance within the next year in light of Ricci. I think it still is persuasive authority, not binding authority, and should be considered in light of the Ricci decision.
MR. FITZGERALD: The Supreme Court also talked about Griggs v. Duke Power. Can one of you talk a bit about that case to give our readers a bit more clarity?
MR. WILLIAMS: It is a 1971 Supreme Court opinion that came up with — or at least validated the concept of – disparate impact.
A power plant had certain testing and other requirements regarding high-school graduation and some other things. The plaintiffs couldn't prove intentional discrimination or disparate treatment; but the impact was severe in terms of its effect on minorities.
Basically, the Supreme Court validated the idea of disparate impact. There were a lot of subsequent cases between '71 — the next 20 years — on that subject, and many people believe — including the majority of people in Congress, as of 1991 — that the Supreme Court had basically moved back.
The Supreme Court placed many restrictions on the concepts initially announced in Griggs v. Duke Power; so when Congress decided to tinker with the 1964 Civil Rights Act, primarily because of sexual harassment – in addition to giving people the right to jury trials, imposing monetary caps, and a number of other things – they legislated disparate impact in the 1991 act.
That is discussed in the opinion, the history, but they kind of gloss over why the 1991 act was instituted because, when the Court speaks on a non-constitutional area, and interprets a law to say X, and the legislature says “that's not what I meant,” and then says it is Y, that, according to many Supreme Court cases, should be given a lot of weight in terms of interpreting Y.
Some people could argue they may not have done that in this case.
MS. SPEIGHTS: Griggs generally stood for the proposition that, if you have a test or some kind of hiring process that creates an impact, you're going to be liable, unless you can show business necessity. There must be some relationship between the job and the test. Then there was a case that came after Griggs that said, in addition to showing business necessity, you also have to show that there was no alternative that was less discriminatory.
MR. WILLIAMS: Like the religious area?
MS. SPEIGHTS: Right. So, it has been the law for quite some time.
MR. MIKLAVE: I think what Scalia's concurring opinion is suggesting is that we should go back to Griggs vs. Duke Power and revisit that case. Griggs vs. Duke Power arose, by the time it got to the Supreme Court — it was 1971 — but I believe the requirements that were adopted by the company were adopted the day the 1964 Civil Rights Act became law; and, certainly, there was some evidence in the record to suggest that the reason those particular requirements were adopted was to perpetuate the discrimination that had been outlawed.
Duke Power had adopted a requirement that all employees, regardless of the job they held, had to have a high school diploma. The janitor had to have a high school diploma. The CEO had to have a high school diploma. Well, that requirement was challenged basically because [the] “high school diploma” requirement was not really “necessary” in order to be a good janitor, and disproportionally impacted on minorities. In other words, the requirement could be viewed as simply continuing the past discrimination through other means.
Now, Griggs could have been litigated, I think, very easily as a disparate treatment case, but apparently, the plaintiffs did not have enough evidence of intent to advance. So the Supreme Court basically said, when you show that there is a disparate impact on the basis of a protected classification, and the requirement which causes the disparate impact is not related to the job and required by business necessity, you have violated Title VII by causing a disparate impact.
I think Justice Scalia is suggesting we go back to that standard and really look hard at determining the constitutionality of adverse impact, for he suggests that, as a surrogate for proving intentional disparate treatment, that may be a constitutionally acceptable test. I think we are going to be revisiting Duke Power.
MR. WILLIAMS: He's doing that because of the 1991 act. Clearly, if there was no 1991 act, disparate treatment would probably be gone. If not before, it would have been gone here. That's basically where they were heading; but they can't make it go away without finding the 1991 act unconstitutional.
MR. FITZGERALD: I'm going to ask some thumbs-up or thumbs-down, yes-or-no questions. Are scholarship programs to promote diversity okay at your companies?
MS. SPEIGHTS: I say yes.
MR. WILLIAMS: Yes.
MR. MIKLAVE: Yes.
MR. FITZGERALD: Is making sure you outreach to a diverse group okay?
MS. SPEIGHTS: Definitely yes.
MR. WILLIAMS: Yes.
MR. MIKLAVE: Yes.
MR. FITZGERALD: Is it okay to have company mentoring programs where you make sure that diverse individuals are getting mentored?
MR. WILLIAMS: You make sure they are getting mentored? Or is it only a diversity mentoring program?
MR. FITZGERALD: You tell me.
MR. WILLIAMS: I think the former is clearly fine. The latter, I think, is also fine. I think it gets into more a question, depending upon what happens as a result of that mentoring program.
In other words, if you had a mentoring program that, for whatever reason, excluded all your minority employees, you'd get into is that an employment action; so I can see the reverse happening.
But the former, that you are making sure everyone is included, is not an issue.
MS. SPEIGHTS: If you have a mentoring program and everyone is being included, I think it is fine.
MR. MIKLAVE: I would be suspicious of a mentoring program that excluded any individual because of their race.
MR. FITZGERALD: Sending diversity questionnaires to outside service providers, for example, outside counsel? Is that okay?
MR. WILLIAMS: Yes.
MS. SPEIGHTS: Yes.
MR. MIKLAVE: Yes, I think absolutely.
MR. FITZGERALD: Asking that the team of attorneys that work on your matters is a diverse one?
MR. WILLIAMS: Asking or demanding? I think either one is fine.
MS. SPEIGHTS: Either one is fine, as long as you're not excluding anyone.
MR. MIKLAVE: I think this is an area where you start to get into some problematic areas, because most clients don't have an unlimited budget for unlimited amount of attorneys. If what you're saying is you're making intentional selection decisions based on race, that one attorney is going to be assigned as opposed to another because of race, and being on this team may affect long-term employment opportunities, I think you have to use some great care there.
MR. FITZGERALD: So if I say, “Look, there are going to be three individuals that are going to be the primary relationship partners, and one of those three people has to be a woman or an ethnic minority,” that’s a problem?
Clearly, being the relationship partner for a large company could translate to dollars in my pocket. It could completely alter your trajectory at a firm. That’s why I want to ask. I really want to drill down on that.
MR. MIKLAVE: Most partners are not employees.
MR. WILLIAMS: Most law firms could get around that issue very easily because it doesn't impact employment, but for a reality standpoint, companies do that, but they normally select the people. In other words, they're going to tell the law firm who those people are, as opposed to giving them some identifiable criteria. I don't think any employment decision is implicated.
Now, the first one, I agree that, if you say, “I have a lawsuit, and this is how I want it staffed,” and you're talking to the law firm, and you're going to do that with its employees – so [if] the law firm is being asked to make selection criteria on this given case, based on race, that could be potentially problematic.
Now, the question becomes, is it an employment action, because is that one case going to make a difference? But I think you are getting into the area of what some of us actually remember, which is, “I don't want any Black person on this case.”
MS. SPEIGHTS: That's right.
MR. WILLIAMS: I think you're getting real close to that, in terms of that.
MR. MIKLAVE: There are ways to design around that, however. For example, your associate programs should call upon associates to serve in a variety of functions, in a variety of cases, over a period of time, and every associate should have the same criteria so that you're not tracking people in designated areas. You don’t have one person that only handles pro se cases, because that's an easy out for them.
You mix up the diversity of opportunity and that will also — if you have a good diversity program — create the diversity of opportunity that you want to try to achieve.
MR. WILLIAMS: But what if your client calls you and says, “I have a new discrimination case, and I want you on it, but I want a woman next to you”? Is that okay?
MR. MIKLAVE: “I'll make sure the litigation team goes past you. You will not be disappointed with the results. You'll have our best people on it. Trust me, Charlie, our best people.”
(Laughter.)
MR. FITZGERALD: I better keep going with this.
MR. WILLIAMS: I would, too. Charlie or Sally?
MR. FITZGERALD: When I was in-house at one company, the team that I supervised wasn’t diverse. There was a minority woman that I wanted to see included. From time to time, she handled overflow projects when other members of the team couldn’t, and she did a wonderful job. Her credentials were also far superior to those of the all-white, all-male team that was doing the work.
Several times, I told the partner in charge that would really like her to work on my matters. He hemmed and hawed and gave me a number of unpersuasive excuses. I eventually said, “she will work on my matters,” because I knew if I didn't actually say, “this will happen,” she’d continue to get table scraps.
Can I do that?
MR. WILLIAMS: No. The issue is not you. Your issue is the law firm.
MR. FITZGERALD: Exactly.
MR. WILLIAMS: You have an absolute right to ask for who you want.
MR. FITZGERALD: I can say, “I want this person”?
MR. WILLIAMS: I don't think you are subjected to liability. However, your mistake — if that's what you want to call it — doesn't relieve me of my obligation; and I go back to a class action which I handled once, which was in home nursing care.
The patient may be older. The patient may have a bit of dementia. Sometimes, they will make unacceptable requests. “I don't want an African American. I don't want a Hispanic. I don't want someone” of a certain religion.
The employer was faced with, well, it is their home. They're asking who comes into your home. Normally, that's your call. To answer it: usually, no. You can't.
I would think that the answer you heard a minute ago is probably the answer that you're going to get, but let me add a twist to that: What if you believe — if the client believes that this makeup creates the best team. In other words, this case is going to be tried, and this is what I want to see.
Does that change things in terms of the selection? I wish it did, but I don't think it does.
MR. MIKLAVE: I don't think it does, either.
MR. WILLIAMS: Although some people might believe that is a wise decision, in a given case.
MS. SPEIGHTS: Maybe it’s justified as a business necessity?
MR. MIKLAVE: I think that's the problem that law firms face in making these decisions; and I simply point out, yet, again, business necessity is a defense to adverse impact; it is never a defense to intentional disparate treatment race discrimination. There is no bona fide occupational qualification for race.
MS. SPEIGHTS: Suppose that client was asking for me as an African American woman because I was better than the white associate?
MR. WILLIAMS: If they asked for you, it's not an issue.
MR. MIKLAVE: The client asks for you. It is when I go through and make staffing decisions of associates based on their gender, based on their race, or based on their marital status.
MS. SPEIGHTS: You are saying you are doing it because the client is asking you to do it?
MR. MIKLAVE: Well, I just don't do it. I try to put together, every time, the best lawyers I can for that function.
MR. WILLIAMS: Wait. Let's assume we all have talented lawyers available to us. And so, if you believe that, given the choice between three people, that someone with a given trait, race, or gender is going to be a better fit sitting next to you or taking that deposition, we all make the decision because we believe they're the best person for the job.
But can we say that race or gender didn't have an impact on that?
MR. MIKLAVE: Well, it is funny you mention that. In essence — let's get back to the Supreme Court decision for a minute — one of the things I don't think the Supreme Court pays enough attention to in terms of the disparate impact analysis is how that is intended to uncover the very subtle biases that you have just identified. And I think that's an excellent point.
MR. WILLIAMS: But it is a treatment, not an impact. We're making treatment decisions; and so –
MR. MIKLAVE: Over the long term, they're also impact analysis decisions. If you're saying —
MR. WILLIAMS: Not any more.
MR. MIKLAVE: That's true. If you're saying, in any particular case, the best litigation team I can put together in a race case will always be a diverse team, how will you not have a diverse impact over time on the employment opportunities of those that are working?
For me, if I'm saying that in any race case that I litigate as a partner, I need a diverse team, does that mean that I need minority associates on my teams all the time in order to do that? Isn't that the very adverse impact we are trying to root out in employment discrimination law in the first place?
MS. SPEIGHTS: The pool would be too small. I'm sure it would be insignificant. Really. I don't think you're going to have an impact.
MR. WILLIAMS: Theoretically, you would have one.
MS. SPEIGHTS: Theoretically, yes. Legally, no.
MR. WILLIAMS: Just think of the impact you would have on the other side because of the growing need.
MS. SPEIGHTS: It is a difficult decision.
MR. MIKLAVE: It is.
MR. WILLIAMS: It is. And I liked the answer Matthew gave before.
MR. FITZGERALD: MCCA’s mission is to promote diversity in-house. Part of the theory is that, by leveraging our relationship with in-house counsel, we can increase diversity in firms. That's something that is in the forefront of the minds of in-house counsel.
At first, without having read the opinion, I wondered how Ricci would affect diversity initiatives.
MR. MIKLAVE: One of the things Epstein Becker & Green brings to the table, we are a very diverse environment. We don't look to have a diverse environment for diverse cases; we have a diverse environment for all our cases. I think that's the answer, making sure there are opportunities for everyone on all levels all the time.
MR. WILLIAMS: And the hope is that law firms — and I don't think they will — will [not] attempt to respond to in-house counsel's continuing desire for a diverse group of people to do its legal work by pointing to Ricci as an impediment, because I think that would be a mistake. I don't think that's something in-house counsel would accept in any way.
MS. SPEIGHTS: I think that the legal profession, especially the kinds of firms that we are in, has such a history of having traditionally segregated job categories that, under the Johnson-Weber cases, it is very difficult to sit here and say that we can't have robust diversity programs within law firms that even go to what types of experiences or opportunities diverse lawyers get.
MR. FITZGERALD:
Is it okay, after Ricci, to donate money to organizations that promote diversity?
MR. MIKLAVE: Yes.
MR. WILLIAMS: Yes.
MS. SPEIGHTS: Yes.
MR. FITZGERALD: Is it okay to create internship programs for diverse law students?
MR. WILLIAMS: What kind of intern programs?
MR. FITZGERALD: Basically, they get to be a summer clerk.
MR. WILLIAMS: They exist. I don't know that Ricci changes them, in terms of that.
Well, no, they might change them.
MR. MIKLAVE: I would certainly draw a distinction between paid internship programs, like summer clerk positions, and internship programs done for academic credit that are not employment-based. Clearly, if they're not employment-based, Ricci and Title VII don't impact on them.
I think the jury will be out on the paid summer-clerking experiences until we have a little bit more case law under Ricci. I would be a little wary of them right now.
MS. SPEIGHTS: To the extent they're paid, I would agree with you on that. I think what you need to do is something like we did several years ago here at this firm, when we instituted a diversity fellowship in order to try to get more diversity in the summer program.
It is not limited to diverse students, but it is for people who have an interest in, or have worked in, or have an interest in promoting, diversity within the profession.
MR. MIKLAVE: Let me just make a pitch here for non-traditional mentoring programs as well. Law firms have a unique opportunity to impact the lives of people that are not their employees by reaching out to high school students, reaching out to college students, reaching out to those that are in law school, and establishing mentorship programs outside of the employment context. I don't think Ricci impacts upon those at all.
If any law firm wants to really put its money where its mouth is where it comes to diversity — maybe that's not the right phrase — they should go out and seriously consider how they can impact upon the views of young students who may otherwise not realize that they have a legal opportunity available to them or a future in the law available to them, but may just have an interest and want to see what it's like, just in a big law firm.
MR. WILLIAMS: But if my goal is to satisfy that client's request that I become more diverse, that's years away. So these programs that we're talking about, in terms of getting people into the summer clerkship programs and things of that nature, have a much more immediate impact.
I don't think Ricci impacts whether one can have a more-diverse clerkship program. I think what it may impact is some programs that have a separate minority clerkship program. I know they're not that common, but they do exist. I've never been a proponent of them, for other reasons. I believe if you really are interested in diversity, you bring these people in your normal clerkship program.
That's another issue. I think having a separate minority clerkship program where your criterion for hiring is that you have to be a minority is a problem. I think it was a problem before Ricci too.
MR. MIKLAVE: I do, too.
MR. FITZGERALD: Is there anything you that we haven’t addressed that you think is important for our readers to know?
MS. SPEIGHTS: The only thing I would add is that, no matter what you do in terms of validating a test or selection criteria, you still may find that there is an impact. There's nothing to say that, once you've given that test and you find out there are problems with it, that you have to keep giving it.
It may make sense to go back to the drawing board and say, “there's something wrong with this test, let's throw it out,” or “let's look at it again.”
It goes back to Brandon’s initial question about whether it is okay to have a test that has impact. And it is – once you have done your validation studies, and the other work, and it is a good validation study. I just wouldn't leave it there.
You'd be well-served to go back and look at it again, because once you put it in the real working world, there are going to be things that may occur that didn't come out in the validation process.
Be flexible. Don't just stick with something because you have it.
MR. WILLIAMS: I found the decision interesting, from a jurisprudence standpoint, probably for a different reason, in that I believe the uproar that led up to this with the nomination of [Justice Sonia] Sotomayor, it was turned on its head.
I believe — and I'm somewhat conservative, I think – that what the Supreme Court is doing in this decision is legislating. There is nothing in the 1991 Civil Rights Act that says “disparate treatment here, disparate impact here,” and puts them above each other. They don't have that. They both exist.
I think the Supreme Court has elevated one over the other.
And I think that is what many conservatives would traditionally call legislating; and they have done that; and I think they've relatively clearly done that in this opinion.
I also think the failure to remand is a bad precedent for the Court. There have traditionally been certain rules to which the Supreme Court has held fast.
I would like to say to the Supreme Court, get back to mainly more of a judicial interpretation period, and not get into what we got into here, which I think was legislating. I'm not sure how much impact this case will ultimately have, for the reasons Grace mentioned.
I think they're not going to change things in terms of the economic pressures companies face, but I do think it portends a very interesting next couple of years for the United States Supreme Court and how they reconcile the traditional role in this opinion.
MR. FITZGERALD: I want to thank everyone for participating. DB
Brandon M. Fitzgerald is vice president, general counsel, and secretary of the Minority Corporate Counsel Association.
From the Jan/Feb 2010 issue of Diversity & The Bar®