On Monday, June 29, 2009, the U.S. Supreme Court announced its long-anticipated decision in Ricci v. DeStefano regarding claims of reverse discrimination brought by white and Hispanic firefighters in Connecticut. The decision reverses the ruling rendered by U.S. Supreme Court nominee, Justice Sonia Sotomayor. As the news headlines spread that Sotomayor was reversed, the implication for employers is somewhat confusing. The Court's ultimate decision was to adopt the "strong basis in evidence" standard to deal with those situations where an employer might face competing violations of Title VII: (1) a disparate impact as to a racial minority on the one hand; and (2) taking an adverse action because of a racial disparity against one race on the other. This situation, while seemingly rare, does present itself and provides the Court an opportunity to set forth the standard to assist an employer in this Catch-22 circumstance.

The case before the Court involved a suit by 17 white firefighters and one Hispanic firefighter. In 2003, there were 118 New Haven, Connecticut firefighters who took examinations to qualify for the rank of lieutenant or captain. The results of the examinations would determine which of the firefighters would be considered for promotions to lieutenant and captain over the next two years, as well as the order in which they would be considered. The results of the exams showed that white candidates had outperformed minority candidates.

After much debate, the New Haven mayor and other local politicians decided to throw out the examinations. As a result, certain white and Hispanic firefighters who likely would have been promoted based on their test scores sued the city of New Haven and some of its officials. The firefighters alleged that by discarding the test results, the City and its officials discriminated against them on the basis of their race in violation of Title VII (and other applicable statutes). The City and its officials argued that by certifying the examinations, they would have adopted a practice that had a disparate impact on the minority firefighters.

There was no doubt that the examinations were objective, but that they had a disparate impact on minority firefighters. Nevertheless, as the Court found, the tests were job-related and consistent with business necessity, which negates any liability for disparate impact. Regardless, the City refused to certify the test results because "too many whites and not enough minorities would be promoted" and the City feared disparate impact litigation by the minority firefighters. The Court explicitly stated that this was not a proper action -- that the City's choice to make a race-based adverse employment decision against white and/or Hispanic firefighters to avoid disparate impact liability constituted race discrimination in violation of Title VII in and of itself.

Accordingly, the Court scripted a new standard for such circumstances. The Court explained "that race-based action like the City's in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute." In this case, because the City had a valid defense to the disparate impact claim, the City did not have a "strong basis in evidence" that it would be liable for the disparate impact against the minority firefighters. Therefore, it was not permitted to take action against another class on the basis of race. Such action constituted "reverse" discrimination under Title VII and for that reason, the Court reversed the determination of the Second Circuit Court of Appeals, holding that the plaintiff firefighters were entitled to summary judgment on their discrimination (Title VII) claim and remanded the case to the district court.

Therefore, what this means for employers is that in the rare circumstances where they are faced with a finding of disparate impact on protected class -- be it racial minorities, women, persons over 40 years of age, or persons with disabilities -- and the decision to remedy it would cause discrimination against another class of persons, the employer is not allowed to take that second step to allegedly remedy the discrimination unless it has a strong basis in evidence that it will be held liable for unlawful discrimination based on the disparate impact found. Lower courts will be left to determine what a "strong basis in evidence" means in these circumstances.