The United States Supreme Court in Ricci v. DeStefano, 129 S. Ct. 2658 (2009), acknowledged that its task was to provide “guidance to employers” — but the challenge is figuring out exactly what that guidance is. After firefighters in the City of New Haven took a facially neutral promotional test, New Haven did not certify the test because a disproportionately low number of minorities passed it. Plaintiffs then sued, accusing New Haven of disparate treatment.

The Court framed the case as a question of whether an employer may commit disparate treatment discrimination in order to avoid disparate impact liability. In ruling that New Haven’s decision to toss the test was a race-based action and thus impermissible under Title VII, the Court recited a new standard for employers to wrap their heads around. The Court held that in order for an employer to take such an action, the employer had to have a “strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.”

One of the few clear messages to employers is that if they decide not to certify a test’s results, the decision cannot be solely due to the fact that there is a statistical disparity in the test’s results. This means that even if an employer can foresee the assertion of a prima facie case of disparate impact discrimination, the employer may still be bound to use its test. At the very least, the Court is telling employers not to be unnecessarily fearful of disparate impact claims.

Another lesson that may be gleaned from the Court’s opinion is that the more time an employer spends ensuring the legitimacy and the objectivity of a test, the more bound the employer will be to the test’s results. Nonetheless, employers are incentivized to take dedicated measures to prevent disparate impact before a test is administered because the Court’s opinion also hinders employers from making decisions based on a desire to avoid liability after a test is administered.

In the wake of Ricci, employers are left to wonder when it is acceptable to abandon a test showing a disparate impact. The Court did not remand this case for a determination of whether New Haven met the new standard; instead, the Court quickly determined that it did not. A further complication is that this test did not entitle the highest achievers to a promotion, but merely qualified them for one. As a result of New Haven’s decision, no one was promoted above the individuals who passed the test — thus, as Justice Ginsburg in the dissent pointed out, this was arguably not a disparate treatment case.

Legal commentators may debate whether or not this case is pro-employer, but we know for certain that it is pro-litigation. The decision requires employers to weigh the risk of a disparate treatment claim against the risk of a disparate impact claim. By creating the standard of a strong basis in evidence of disparate impact liability, the Court’s directive to employers is that they should not attempt to avoid litigation, but rather avoid liability — an important and costly difference.