By David Worley
In Maraschiello v. City of Buffalo Police Dep’t, 117 FEP Cases 665 (2d Cir. 2013), the Federal Second Circuit Court of Appeals agreed that summary judgment was proper when a white Buffalo Police captain was denied a promotion after he refused to take the new aptitude test, which he claimed was implemented to give an unfair advantage to minorities. The court found that because the employer instituted the new aptitude test in a racially neutral manner, and the new test was designed to eliminate previous racial bias, the new test could not be considered to have an adverse racial impact.
Maraschiello received the top score on an aptitude test to qualify for a promotion to Buffalo PD inspector. However there were no positions open when Marschiello took the test. Two years later, the City concerned about possible Title VII claims, changed the test because of longstanding complaints that the test had a disparate impact on black candidates. Maraschiello refused to take the new test, the inspector position opened up, and it was offered to the highest scorer of the new test, who was also white. Marschiello claimed the new test was only implemented to favor blacks over whites, which is impermissible under Title VII and the Supreme Court 2009 “reverse discrimination” ruling in Ricci v. DeStefano, 557 U.S. 557, 106 FEP Cases 929 (2009).
The court in Ricci had held that an employer may not discard a test to achieve a more desirable racial distribution of promotion-eligible candidates absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision.
However, the court here found the current case easily distinguishable from the facts of Ricci. Whereas in Ricci the employer discarded the results of a test because of a racial disparity in the result (which is impermissible), here the employer simply instituted a new test to remedy a possible bias in any future results.
The court also noted that Ricci specifically permits an employer to consider, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of race.
The court noted that although one purpose of the new tests were to alleviate potential adverse racial impact, the express stated purpose was to more closely align the testing material with that of the job qualifications. Also important was that the City took over a year to design and implement the new plan, in contrast to a Ricci situation where results would be thrown out immediately because a whiff of racial prejudice. In summary, the implementation of the new test did not deprive any racial group a chance at the promotion.
