The Office of Federal Contract Compliance Programs (OFCCP) has posted on its website a set of frequently asked questions (FAQs) about the U.S. Supreme Court’s decision in Ricci v. DeStefano, the reverse discrimination case involving New Haven firefighters. In Ricci, the Court determined that the City of New Haven – by tossing the results of an exam that would have disqualified African American from receiving promotions – discriminated against non-African Americans whose scores would have qualified them for advancement. The Court held that “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” This decision has left many federal contractors – who must implement affirmative action programs – wondering whether Ricci will affect the OFCCP’s compliance reviews, and whether the decision would change the contractor’s obligations regarding the use and validation of job-related tests.

According to the FAQs, Ricci does not change a contractor’s affirmative action obligations, nor its obligation to comply with Uniform Guidelines on Employee Selection Procedures (UGESP) when using a test as part of its selection process. If such a test shows that it would have a disparate impact on a protected class, then the test must be validated for the job at issue. Additionally, the contractor is required to investigate alternative selection procedures that would have a lesser impact on the particular race, ethnic group, or gender.

The FAQs also explain that “to comply with its nondiscrimination obligations, a contractor must examine its tests and other selection procedures to identify whether there are any problem areas in terms of adverse impact on a particular race, ethnic group, or gender, and to prevent prohibited discrimination from occurring.” The OFCCP advises that contractors that are proactive in assessing their testing procedures are “more likely to avoid problems and successfully defend against any claim of disparate impact.” The OFCCP also suggests that it may be permissible to “pre-test” the use of an actual test by determine whether there is adverse impact. So long as results are not disclosed to candidates or hiring officials, the company can adjust the test or seek reasonable alternatives before using the procedure to make actual selection decisions.

As for how the OFCCP will address an allegation of discrimination, the FAQs explain that the agency will use established complaint procedures to investigate any class complaint from applicants or employees who believe that they were discriminated against when a contractor refused to use the results of a selection procedure. Additionally, “[w]here the contractor defends its action by asserting that using the selection procedure could result in liability for an unlawful adverse impact based on race, ethnicity, or gender, OFCCP will evaluate whether, as prescribed by Ricci, there is a strong basis in evidence for the contractor's claim.”