On June 29, 2009, the United States Supreme Court considered whether an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact. Ricci v. DeStefano, 129 S.Ct. 2658.


A lawsuit was brought against the city of New Haven, Connecticut and its Mayor, John DeStefano, Jr., by 18 city firefighters alleging that the city discriminated against them with regard to promotions. Seventeen of the plaintiff firefighters were white and one was Hispanic. All had passed a test administered for promotions to management. However, the city invalidated the test results because none of the African-American firefighters who passed the exam scored high enough to be considered for the management positions. The plaintiff firefighters alleged that the city had violated Title VII's prohibition of disparate treatment. The District Court ruled for the defendants, granting their motion for summary judgment, a decision affirmed by a panel of the Second Circuit Court of Appeals, which included United States Supreme Court Justice Sonia Sotomayor. The United States Supreme Court granted certiorari and heard oral arguments on April 22, 2009.

The Supreme Court's Decision

Justice Kennedy, writing for a 5-4 majority (Justices Kennedy, Roberts, Scalia, Thomas, and Alito), concluded that the city's action in discarding the test results was a violation of Title VII. First, the majority rejected the arguments that the city did not discriminate. Instead, it was found that the city did engage in express, race-based decision-making when it declined to certify the test results because of the statistical disparity based on the race of the firefighters. As such, the majority's focus shifted to whether the articulated purpose to avoid disparate-impact liability excuses would be considered prohibited disparate-treatment discrimination.

The majority rejected the strict approach suggested by the firefighters, which argued that it is not permissible under any circumstances for an employer to take a race-based action, even if the intent is to avoid disparate impact liability. The majority also rejected the city's position that an employer's good-faith belief that its actions are necessary is enough to justify raceconscious conduct. Instead, the majority concluded that only a "strong basis in evidence" of an impermissible disparate impact would excuse an employer's decision to invalidate test results, which would upset an employee's legitimate expectation to not to be judged on the basis of race.

In applying the "strong basis in evidence" standard, the majority found that the city's justifications for its actions were insufficient to excuse its actions. It noted that there was no evidence that the test was flawed because it was not job-related or because other, equally valid and less discriminatory tests were available. The majority found that fear of litigation alone is insufficient to justify an employer's reliance on race to the detriment of individuals who qualified for promotions.