NOS , , , IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Transcription

1 NOS , , , IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT SHARON ISABEL, RICHARD PARKER, GREGORY SANDERS AND WALTER WILLIAMS, JR., v. CITY OF MEMPHIS, Plaintiffs-Appellees, Cross-Appellants, Defendant-Appellant, Cross-Appellee. On Appeal from the United States District Court for the Western District of Tennessee Western Division BRIEF AMICUS CURIAE OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL IN SUPPORT OF DEFENDANT-APPELLANT, CROSS-APPELLEE S PETITION FOR REHEARING WITH SUGGESTION FOR REHEARING EN BANC April 22, 2005 Ann Elizabeth Reesman McGuiness Norris & Williams, LLP Suite Fifteenth Street, N.W. Washington, D.C (202)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES...ii INTEREST OF THE AMICUS CURIAE...1 STATEMENT OF THE CASE...2 REASON FOR GRANTING THE PETITION...3 THE CASE IS OF EXCEPTIONAL IMPORTANCE BECAUSE THE PANEL MAJORITY S DECISION CONFLICTS WITH AUTHORITATIVE DECISIONS OF OTHER U.S. COURTS OF APPEALS HOLDING THAT A CUTOFF SCORE NEED NOT BE SET AT MINIMAL QUALIFICATIONS AND NEED NOT BE VALIDATED...3 CONCLUSION...8 CERTIFICATE OF SERVICE

3 TABLE OF AUTHORITIES FEDERAL CASES Association of Mexican-American Educators v. California, 231 F.3d 572 (9th Cir. 2000)...4, 6, 7 Bew v. City of Chicago, 252 F.3d 891 (7th Cir. 2001)... 5 Bryant v. City of Chicago, 200 F.3d 1092 (7th Cir. 2000)... 7 Guardians Association of the New York City Police Department, Inc. v. Civil Service Commission of New York, 630 F.2d 79 (2d Cir. 1980).4, 5, 7 FEDERAL STATUTES Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq... 1 FEDERAL REGULATIONS Uniform Guidelines on Employee Selection Procedures, 29 C.F.R C.F.R (H)...3, 4 OTHER AUTHORITIES Society for Industrial and Organizational Psychology, Principles for the Validation and Use of Personnel Selection Procedures (2003) ii -

4 The Equal Employment Advisory Council respectfully submits this brief as amicus curiae in support of Defendant-Appellant, Cross-Appellee City of Memphis Petition for Rehearing with Suggestion for Rehearing En Banc contingent on the granting of the accompanying motion for leave. The brief urges this Court to grant the petition, vacate the panel decision, and reverse the decision below. INTEREST OF THE AMICUS CURIAE The Equal Employment Advisory Council (EEAC) is a nationwide association of employers organized in 1976 to promote sound approaches to the elimination of employment discrimination. Its membership includes over 320 major U.S. corporations. EEAC s directors and officers include many of industry s leading experts in the field of equal employment opportunity. Their combined experience gives EEAC a unique depth of understanding of the practical, as well as legal, considerations relevant to the proper interpretation and application of equal employment policies and requirements. EEAC s members are firmly committed to the principles of nondiscrimination and equal employment opportunity. All of EEAC s members are employers subject to Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. 2000e et seq., as well as other equal employment laws and regulations. As employers, many of EEAC s

5 members use objective selection devices, including tests, to select among candidates for employment, for promotion, for training opportunities, and the like. Given their significant interest in obtaining the better candidates, they routinely use cutoff scores, and often use cut-off scores that are above sometimes well above what have been called the minimum qualifications necessary to do the job. Thus, the issue presented in this case is extremely important to the nationwide employer constituency that EEAC represents. The panel majority faulted the City for failing to validate the cut-off score for the test being challenged, adopted the district court s conclusion that the cutoff score must measure minimal qualifications, and criticized the test because it measured only job knowledge rather than the entire job domain. Isabel v. City of Memphis, F.3d, 2005 WL , at *6 (6th Cir. Apr. 11, 2005). These conclusions conflict with the law in other circuit courts of appeals and will have a devastating effect on private sector employers ability to select better candidates for jobs. STATEMENT OF THE CASE Defendant-Appellant City of Memphis uses a written test, among other components, as part of the promotion process from the rank of sergeant to that of lieutenant in the police department. Id. at *1. Plaintiffs are African

6 American sergeants who attained scores below the cut-off score for passing the test. Id. They sued the City, claiming that the City s promotional process, and particularly the test, violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. Id. After a bench trial, the district court found that the City s written test specifically the test s cut-off score discriminated against African-American candidates. Id. at 2. The City appealed. On appeal, a panel of this Court affirmed. The City has petitioned for rehearing. REASONS FOR GRANTING THE PETITION THE CASE IS OF EXCEPTIONAL IMPORTANCE BECAUSE THE PANEL MAJORITY S DECISION CONFLICTS WITH AUTHORITATIVE DECISIONS OF OTHER U.S. COURTS OF APPEALS HOLDING THAT A CUTOFF SCORE NEED NOT BE SET AT MINIMAL QUALIFICATIONS AND NEED NOT BE VALIDATED The Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. 1607, state that [w]here cutoff scores are used, they should normally be set so as to be reasonable and consistent with normal expectations of acceptable proficiency within the work force. 29 C.F.R (H). The panel majority misread this language to mean that the cutoff score must be set at the minimal qualification level. Indeed, the next sentence, which the panel majority did not quote, says: - 3 -

7 Where applicants are ranked on the basis of properly validated selection procedures and those applicants scoring below a higher cutoff score than appropriate i n light of such expectations have little or no chance of being selected for employment, the higher cutoff score may be appropriate, but the degree of adverse impact should be considered. Id. Thus, the Uniform Guidelines explicitly allow employers to use higher than minimum cutoff scores in making selections. In ruling that cutoff scores must measure minimal qualifications, the panel majority s decision conflicts with those of the U.S. Courts of Appeals for the Second, Seventh and Ninth Circuits. The Second Circuit has said that the employer might establish a valid cutoff score by using a professional estimate of the requisite ability levels, or, at the very least, by analyzing the test results to locate a logical break-point in the distribution of scores. Guardians Ass n of th e New York City Police Dep t, Inc. v. Civil Serv. Commn. of New York, 630 F.2d 79, 105 (2d Cir. 1980). In some cases, the Second Circuit continued, it would have been valid to set the cutoff score at the point where rank-ordering filled the City s needs. Id. In Association of Mexican-American Educators v. California, 231 F.3d 572, 589 (9th Cir. 2000), the Ninth Circuit explicitly agreed with the Second Circuit s decision in Guardians Association. There, the Ninth Circuit noted that the California Superintendent of Public Instruction, who had the responsibility for setting the cutoff score, was not required to set the score at - 4 -

8 the lowest level that a majority of the readers [who reviewed the California teachers credentialing exam and made recommendations for the cutoff score] considered to be passing. Rather, he was required to set a cutoff that was logical, reasonable, and consistent with the data before him. Id. at 590. Also citing Guardians Association, the Seventh Circuit has said that we do not hold cut-off scores to standards so strict that they must select all good job performers and reject all bad. Bew v. City of Chicago, 252 F.3d 891, 895 (7th Cir. 2001). Second, although the Uniform Guidelines provide technical standards for the validation of selection procedures, they do not require that cutoff scores be validated. The panel, however, incorrectly faulted the City for not validating the cutoff score, apparently confusing validation of a selection procedure for a particular use with validation of the cutoff score itself. A test is a measuring procedure which, when applied to job candidates, should produce job-related, i.e., valid, results. These results distinguish among job candidates on some scale related to the employer s interests, such as job knowledge, integrity, or some other characteristic important for the job

9 In contrast, the cutoff score is a point on that scale that is imposed externally to the test for decision making purposes. An employer may set a cutoff score at a particular level for a variety of business reasons. When using the predicted level of job performance to determine cut scores, for example, employers often take into account the consequences of error on the job for which the test is used. In many jobs, moderately acceptable performance is not good enough. In safety-sensitive positions, for example, an employer likely will set higher cutoff scores in order to achieve higher levels of performance to achieve a higher degree of safety. Applicant flow also may be a factor in the decision making process for setting a cutoff score. In strong labor markets where good candidates are plentiful, an employer may raise the cutoff score to maximize the performance of future employees. When the labor market is tight, an employer may lower its expectations and the cutoff score in order to hire enough people to perform the work at hand. By requiring the City to validate the cutoff score, the panel s decision is in direct conflict not only with common practice, but with decisions of other U.S. circuit courts of appeals. The Ninth Circuit has said unequivocally, [a]n employer is not required to validate separately the selection of particular passing scores on an employment test. Association of - 6 -

10 Mexican-American Educators v. California, 231 F.3d 572, 589 (9th Cir. 2000). See also Guardians Association, 630 F.2d at 105 (noting that [a]s with rank ordering, a criterion-related study is not necessarily required ). As the Seventh Circuit has noted, it is permissible for [the employer] to set a cut-off score at the point where the rank-ordering provides the number of promotions necessary to fill the [employer s] available openings. Bryant v. City of Chicago, 200 F.3d 1092, 1100 (7th Cir. 2000). Third, the panel majority s suggestion that the test lacked business justification because it measured only one component (job knowledge) of the job s requirements is simply wrong. Nothing in the Uniform Guidelines requires that a single selection device measure the entire job domain. Indeed, most job selection processes consist of multiple hurdles, of which a job knowledge test often is the first hurdle. According to the major professional testing and selection standards and principles, a single test need not measure the entire domain. Society of Industrial and Organizational Psychology, Principles for the Validation and Use of Personnel Selection Procedures 24 (2003). The panel majority s decision, if allowed to stand, will have a devastating effect on private sector employers ability to select better candidates. A primary reason for using a validated test to select among - 7 -

11 candidates for jobs, for promotions, and other reasons is to have an objective method of distinguishing among candidates for job-related reasons. The panel majority s rulings regarding cutoff scores devalues these important tools substantially. CONCLUSION For the foregoing reasons, Defendant-Appellant, Cross-Appellee City of Memphis Petition for Rehearing with Suggestion for Rehearing En Banc should be granted, the panel decision vacated, and the decision below reversed. Respectfully submitted, April 22, 2005 Ann Elizabeth Reesman McGuiness Norris & Williams, LLP Suite Fifteenth Street, N.W. Washington, D.C (202)

12 CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of April 2005, two (2) true and correct copies of the foregoing Brief Amicus Curiae of the Equal Employment Advisory Council in Support of Defendant-Appellant, Cross Appellee City of Memphis Petition for Rehearing with Suggestion for Rehearing En Banc were served via Federal Express Priority Overnight, addressed as follows: David M. Sullivan 3251 Poplar Avenue Suite 130 Memphis, TN (901) Louis P. Britt III Thomas J. Walsh, Jr. FORD & HARRISON LLP 795 Ridge Lake Boulevard Suite 300 Memphis, TN (901) Sara L. Hall CITY ATTORNEY S OFFICE 125 North Main Street Room 336 Memphis, TN (901)

13 I further certify that an original and 25 copies of the foregoing brief were filed on this day via Federal Express Priority Overnight, addressed to Leonard Green; Clerk of the Court; United States Court of Appeals for the Sixth Circuit; Potter Stewart United States Courthouse; 100 East Fifth Street, Room 532; Cincinnati, OH 45202; (513) Ann Elizabeth Reesman