Yesterday, the U.S. Supreme Court heard oral arguments in Ricci v. DeStefano, a case in which several white and Hispanic New Haven firefighters claim that they were discriminated against when the city refused to certify promotion test results based on a concern that the test may have been flawed. Attorneys for the firefighters contend that the city improperly refused to certify the test results because the test did not generate a sufficient number of African-American candidates for promotion. Attorneys for the city contend that the city properly took a second look at the validity of the test when it appeared to have had an impermissible disparate impact on African-Americans in violation of Title VII and then refused to certify the test results when it discovered flaws in the validity of the test and the testing process.

During yesterday’s argument, Justice Souter expressed concern that, unless the city has the flexibility to reconsider its test results, it may be placed in "a damned if you do, damned if you don't” situation. Any decisions the city based on the test results would be a likely target for litigation under either a claim of disparate treatment (the firefighters’ claim in this case) or a claim of disparate impact (the likely claim of African-American promotion candidates had the test results been certified). This dilemma results, as Justice Scalia noted, in putting the disparate treatment and disparate impact models of discrimination "at war with one another."

When this decision is announced, it undoubtedly will raise a firestorm of controversy. We will be there to let you know what it all means.