Ricci and Croson - Developing Defensible Diversity Initiatives Using Croson Studies (Overview)
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On June 29, 2009, the U.S. Supreme Court handed down the first Title VII ruling that answers the difficult question: “Under what circumstances can an employer subject to Title VII implement otherwise prohibited disparate-treatment discrimination to avoid disparate impact liability?” When answering this question, the U.S. Supreme Court adopted a “strong-basis-in-evidence standard” as a matter of statutory construction for courts to use as a means of resolving conflicts between Title VII’s disparate-treatment and disparate-impact provisions - “allowing violations of one in the name of compliance with the other only in certain, narrow circumstances” (Ricci, p. 23). Twenty years prior to the Ricci case, the U.S. Supreme Court codified the “strong-basis-in-evidence standard” in Richmond v. Croson – a concept that first originated three years earlier in Wygant v. Jackson Board of Education by Justice Powell. Both of these cases laid down legal concepts that were relevant to the Ricci context...defining how the strongbasis-in-evidence standard applies to various personnel actions and diversity initiatives. Learn more about the BCG Institute for Workforce Development by going to www. BCGInstitute.org Visit http://bcginstitute.org/?AIBookSeries to learn about the Adverse Impact and Test Validation webinar series based on Dr. Biddle’s book.
Transcript of Ricci and Croson - Developing Defensible Diversity Initiatives Using Croson Studies (Overview)
Ricci and Croson: Developing
Defensible Diversity Initiatives Using
Croson Studies
BCGi: Adverse Impact & Test Validation Book Series
What are Diversity Initiatives and How are the
Ricci and Croson Cases Relevant?
• Diversity Initiatives can sometimes include race-conscious
remedies or initiatives that may focus on particular groups that
are currently or historically underutilized
• The USSC Ricci case (2009) has given guidance regarding
disparate treatment cases that governs several conditions
• The USSC Croson case (1989) has given guidance regarding the
use of “race conscious remedies” and how/when they can be
used
• Diversity Initiatives can range from simple inclusion techniques
(such as targeted outreach programs) to quotas, which typically
require judicial instatement
www.BCGinstitute.org
Why is this Topic Important to HR/EEO Professionals?
• Why do I need to know about this topic?
– Establishing defensible Diversity Initiatives is one way to effectively diversify your organization
– It is possible to use race/gender in a selection process under the correct circumstances
– Diversity Initiatives can also sometimes “push the limit” and potentially generate legal liability (reverse discrimination)
• What are the key essentials I need to know about this topic? – The Ricci and Croson cases collectively provide both the
framework and the boundaries surrounding Diversity Initiatives
– Employers that setup Diversity Initiatives should be careful in both how they are setup and how they are implemented
• What are the consequences surrounding these issues? – Diversity Initiatives can constitute both sides of a sharp sword and
can present “darned if you do and darned if you don’t” situations
www.BCGinstitute.org
Ricci and Croson:
Developing Defensible Diversity Initiatives
Using Croson Studies Presentation Overview
• Overview
• Case Backgrounds
• Evaluating the Relevance of Ricci in both Public and Private Sectors
• The “Strong-Basis-in-Evidence” Standard
• Background on Croson Studies: Justification for Taking Remedial Action
• Essential Components of a Croson Study
• What Constitutes a Defensible Croson Study?
• Evaluating Specific Practices in a Croson Study
• Has Ricci Created an Internal Conflict in the 1991 Civil Rights Act?
• Applying the Ricci Standard to Common Testing Situations
• Applying Ricci to Other Title VII Situations (Outside of Testing)
• Recommendations
www.BCGinstitute.org
Resources
• Adverse Impact and Test Validation: A Practitioner's Handbook by Daniel A. Biddle, Ph.D.
– Purchase online at www.BCGinstitute.org
• Adverse Impact and Test Validation Book Series Webinars
– Recordings available online for all BCGi Platinum Members
– Webinar slides available online to all BCGi Standard & Platinum
Members
• BCGi Membership
– Free Standard Membership
– Premium Platinum Membership
www.BCGinstitute.org
About Our Sponsor: Biddle Consulting Group (BCG)
BCG is an HR firm dedicated to providing the highest products and services related to
Equal Employment Opportunity (EEO), Affirmative Action and Employee Selection.
• BCG’s Consulting Services
― Affirmative Action Plan Outsourcing
― Compensation Analysis
― EEO/AA Litigation Support (Plaintiff and Defendant)
― Job Analysis
― Test Development and Test Validation
• BCG’s Software Products
― Adverse Impact Toolkit™
― AutoAAP® affirmative action plan development software
― AutoGOJA® job analysis software
― C4 call center testing software
― COMPARE™ compensation analysis software
― CritiCall® dispatcher/call-taker personnel selection software
― ENCOUNTER soft skills video situational judgment testing software
― OPAC® office skills testing software
― TVAP™ Test Validation & Analysis Program software
www.Biddle.com
