Supreme Court Rules for White Firefighters in New Haven “Reverse Discrimination” Case
July 7, 2009
Todd D. Steenson- Chicago
In a highly significant 5-4 decision, the United States Supreme Court ruled that the City of New Haven, Connecticut, engaged in unlawful race discrimination under Title VII of the 1964 Civil Rights Act when it discarded the results of firefighter promotional exams that favored white and Hispanic test-takers because it feared a lawsuit by African American candidates who failed the test. Ricci v. DeStefano, No. 07-1428 (U.S. June 29, 2009).
Background on Ricci
In Ricci, the City of New Haven, Connecticut’s fire department conducted a test to determine which firefighters were eligible for promotion to officer positions. Based on the results of the test, the vast majority of the promotion-eligible firefighters were white; no African Americans and few Hispanics were eligible for promotions. After holding hearings concerning the results of the test, the City decided not to certify the results of the test and not to base promotion decisions on the test. The City’s stated rationale was its concern that the results of the test demonstrated the test had a “disparate impact” on minority firefighters. Under Title VII, a disparate impact claim may be based on a facially neutral employment practice (in this case, a promotional exam) that is not intended to discriminate, but which nevertheless has a disproportionately adverse effect on a protected group (in this case, black test-takers). The City discarded the test results because it was concerned about the risk of disparate impact liability if it based promotions on the test results.
A group of white and Hispanic firefighters who were eligible for promotion based on the test results sued, claiming that the City’s decision not to certify the test and grant their promotions constituted intentional racial discrimination in violation of both Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the U.S. Constitution. The City responded that it did not engage in intentional racial discrimination but merely decided not to rely on the test to avoid claims of illegal disparate impact in promotion decisions by minority employees who performed poorly on the test.
The Supreme Court Decision
The Supreme Court agreed with the firefighter plaintiffs and ruled that the City’s decision not to make promotions based on the results of the test constituted intentional racial discrimination in violation of Title VII. The Court first concluded that absent a valid defense, the City engaged in intentional race discrimination in violation of Title VII: all the evidence showed that the City rejected the test results because the higher-scoring candidates were white. The Court then ruled that the City’s concern about avoiding disparate impact liability did not justify its intentional discrimination against the higher-scoring white employees.
The Court concluded that a concern about disparate impact liability can justify race-based actions only if there is a “strong basis in evidence” to believe that moving forward without taking the race-based action would subject the employer to disparate impact liability. In this case, the City would need to show that it had a “strong basis in evidence” to believe that it would be violating Title VII’s disparate impact provisions if it based promotions on the test results.
The City did not satisfy the “strong basis in evidence” test. The Court recognized that the adverse impact of the test on black test-takers was significant and the City was faced with a prima face case of disparate impact liability. But a prima facie case of disparate impact discrimination, based on a threshold showing of a significant statistical disparity in performance by race, is “far from” a strong basis in evidence that the City would have been liable for disparate impact discrimination had it certified the test results. This is because the City could be liable for disparate impact discrimination only if the exams at issue were not job related and consistent with business necessity or that there was an equally valid, less discriminatory alternative that the City knew about but failed to adopt. The Court found that the City could not meet either of these requirements.
Finally, the Court stated that the mere fear of disparate impact liability cannot justify the failure to certify the tests. If the City faces a disparate impact suit after it certifies the tests, it may defend on the ground that it had a strong basis in evidence that had it not certified the tests it would be subject to disparate-treatment liability to the firefighters who passed the test, the Court ruled.
In a departure from its regular practice, the Court analyzed the evidence on its own and ruled that the City could not possibly justify its consideration of race based on a concern about disparate impact liability to the disappointed minority test-takers. The Court therefore ordered that summary judgment be entered for the plaintiffs on their Title VII claim, such that judgment will be entered for the plaintiffs without the need for a trial.
In dissent, Justice Ruth Bader Ginsburg predicted that the Court’s decision will “not have staying power” because it “barely acknowledges” the significance of Title VII’s disparate impact theory, which was developed to address circumstances in which employment tests often blocked minorities from hiring and promotion in municipal jobs. “I would hold that [the City] had ample cause to believe its selection process was flawed and not justified by business necessity,” Justice Ginsburg wrote. “Judged by that standard, petitioners have not shown that [the City’s] failure to certify the exams violated Title VII’s disparate-treatment provision.”
The Significance of the Ricci Decision
The Ricci decision is hugely significant. The ruling means that it will be exceptionally difficult for employers to justify a decision not to act based on the results of tests or other measures of objective performance based on an assertion that the measure has a disparate impact on minorities. Additionally, this case underscores the potential risks of using employment tests; it reinforces the need for an employer to establish that such tests are, in fact, job related and consistent with business necessity; and it sharply limits an employer’s ability to disregard the results of an employment test after the employer has administered the test as part of a promotion process.
The decision is also likely to play a large role in the upcoming confirmation hearings of Supreme Court nominee Sonia Sotomayor. Judge Sotomayor was a member of the panel of judges on the United States Court of Appeals for the Second Circuit that issued the decision that the Supreme Court reversed in Ricci, and is likely to face questioning over her decision from Republican senators.
We also believe that there will be efforts in Congress to overturn this decision legislatively, similar to the legislative overruling of Supreme Court decisions that occurred in connection with the recent amendments to the Americans with Disabilities Act and the passage of the Lily Ledbetter Fair Pay Act.
During the coming months, we will provide updates about the case and its impact.
For more information, contact:
Todd D. Steenson
312.578.6541 | todd.steenson@hklaw.com
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