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Supreme Court Finds Reverse Discrimination Against New Haven Firefighters
July 2, 2009
By: Justin L. Furrow, William H. Pickering
The United States Supreme Court issues its opinion in Ricci v. DeStefano, a reverse discrimination case.
On June 29, 2009, the United States Supreme Court issued its long-awaited opinion in Ricci v. DeStefano, a reverse discrimination case brought by a group of white and Hispanic firefighters against the City of New Haven, Connecticut (the “City”). In a ruling applicable to public and private employers, the Supreme Court held that the City’s refusal to certify test results because of the test’s adverse impact on African-Americans constituted intentional discrimination against the white and Hispanic firefighters, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).
The Court rejected the City’s argument that throwing out the test results was justified by the City’s fear of an adverse impact suit by the African-American firefighters. Writing for the majority, Justice Anthony Kennedy concluded that “[f]ear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.” The Court noted that the City could only be held liable for disparate impact discrimination if the tests were not job-related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s need but that the City refused to adopt. The Court found that the tests were not deficient in either respect and that Title VII did not permit the City to disregard the results.
Background
In 2003, the City sought to fill the fire department’s vacant captain and lieutenant positions with the most qualified candidates, as determined by job-related examinations. The City hired a third-party company to design and administer written and oral examinations. The company conducted a painstaking analysis of the positions to be filled—ensuring that minorities were overrepresented in the process—and ultimately generated written and oral examinations that measured the candidates’ job-related knowledge, job skills and abilities. The company also ensured that the panels that evaluated the candidates’ oral examinations, with one exception, were comprised of one white, one black, and one Hispanic evaluator.
Seventy-seven candidates completed the lieutenant examination—43 whites, 19 blacks, and 15 Hispanics. Of those, 34 candidates passed—25 whites, 6 blacks, and 3 Hispanics. The City charter dictated that only the top 10 candidates were eligible for immediate promotion to lieutenant; all 10 of these candidates were white. Similarly, 41 candidates completed the captain examination—25 whites, 8 blacks, and 8 Hispanics. Twenty-two candidates passed the examination, including 16 whites, 3 blacks, and 3 Hispanics. Under the charter, only nine candidates were eligible for immediate promotion—7 whites and 2 Hispanics.
Due to the disparity in the test results, City officials, including the City’s attorney, expressed concern to the Civil Service Board (“CSB”) that the test had unlawfully discriminated against minority candidates. When the CSB met to consider whether to certify the results, the meetings morphed into a rancorous public debate over the test results that ultimately placed the CSB in a seemingly untenable position. Although no firefighter knew whether he or she had passed the test, some minority firefighters threatened a discrimination suit if the results were certified because they believed the tests were discriminatory. Other non-minority firefighters threatened a discrimination action if the CSB, relying on the racial disparity, refused to certify the results and denied promotions to the candidates who performed well.
In the end, the CSB acted on its belief that a lawsuit alleging disparate impact discrimination would be successful if the test results were certified, and CSB refused to certify the results. As a result, 17 white firefighters and one Hispanic firefighter who passed the examinations but were denied promotions sued the City. The firefighters alleged that the City intentionally discriminated against them on the basis of race, in violation of Title VII and the Equal Protection Clause of the Fourteenth Amendment.
The trial court granted summary judgment in favor of the City. The Second Circuit Court of Appeals affirmed the trial court’s decision. The firefighters then petitioned the U.S. Supreme Court to review the case.
Analysis
The Supreme Court began with an analysis of the firefighters’ claim under Title VII, which prohibits both intentional discrimination (disparate treatment) and unintentional discrimination that results from practices that are neutral on their face but have an unintended discriminatory effect (disparate impact). The Court noted that because the City’s refusal to certify the results was expressly based on race, the City’s action violated Title VII’s prohibition against disparate treatment unless the City had a valid defense. Therefore, the Court was required to determine whether the City’s defense—that it refused to certify the results in an attempt to avoid a disparate impact suit—justified its intentional discrimination.
In attempting to strike the appropriate balance between the prohibitions against disparate treatment and disparate impact, the Court reasoned 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.” Thus, the Court held that the City was justified in refusing to certify the results only if it had strong evidence that the tests were inadequate and that it faced disparate impact liability if the tests were certified. The Court found that, because the tests were not deficient, Title VII did not permit the City to disregard the results.
Practical Effect
The Ricci decision arguably puts the employer between a rock and a hard place if the employer administers a test that has a disparate impact on a protected group. The decision will make it more difficult for an employer to throw out test results (given what will now be a well-founded fear of a reverse discrimination claim) but will not necessarily provide the employer with any added protection against the disparate impact suit that the employer fears. Nevertheless, Ricci provides some added comfort to employers who use carefully designed tests and assessments as part of their selection processes. The case strongly reinforces the notion that a test will be considered valid and legal if it is job-related and consistent with business necessity, unless there is an equally valid, less discriminatory alternative that the employer refused to adopt.
As the Court expressly recognized, a testing procedure that is true to the promise of Title VII—that “[n]o individual should face workplace discrimination based on race”—should not be discarded simply because the raw results indicate a racial disparity. However, because the Court’s decision also affords employers less flexibility to change the criteria of the selection process once they are established, extra care must be taken to ensure that testing protocols are objective and race-neutral from the outset.
If you have any questions about this update, please do not hesitate to contact a member of our Labor & Employment Law Group.