What can an employer do when contemplating an employment decision based on objective criteria such as test scores, when the results appear to favor an employee of one race and thereby disadvantage an employee of another race? On June 29, 2009, the Supreme Court answered this question, in Ricci v. DeStefano - the much-publicized case involving the New Haven, CT fire department - by holding that, unless the employer has a "strong basis in evidence" to believe that the contemplated decision would itself violate Title VII, then the employer cannot discard the objective criteria or test results.

The case arose when the City of New Haven decided to discard the results of a test given to City firefighters to qualify for promotion. White candidates outperformed minorities on the test, and had the scores been adopted, the successful candidates would have been largely white, with no African-Americans promoted. Voicing its concern that the slated promotions might lead to a lawsuit by minority firefighters, the City threw out the test results and promoted no candidates. The decision not to proceed with any promotions, however, then led to the lawsuit filed by white and Hispanic firefighters, alleging "reverse discrimination" under Title VII.

The dilemma faced by the City of New Haven because of the racially imbalanced test scores pitted Title VII's disparate treatment provision (which prohibits intentional discrimination) against its disparate impact provision (which prohibits practices that are facially neutral but have a disproportionately adverse effect), in that the City was seeking to avoid a disparate impact claim, but instead was accused of engaging in disparate treatment. The firefighters argued the City's concern over disparate impact could not justify intentional discrimination against the white and Hispanic firefighters who scored higher on the test, while the City countered that an employer's good-faith belief that its actions are necessary to comply with Title VII's disparate impact provision should permit race-conscious decisions.

The Court's 5-4 decision by Justice Kennedy took a middle ground, holding that only a "strong basis in evidence" that the employment decision at issue would violate Title VII can justify race-based decisions. Although the parameters of the "strong basis in evidence" standard are not clearly articulated in the decision, there is some guidance insofar as the Court held that New Haven did not have a "strong basis in evidence" to invalidate the tests, because (1) the City had paid a consultant to develop and administer examinations that tested the skills and knowledge used by firefighters and took specific measures to avoid creating a test that favored white candidates; and (2) the significant statistical disparity among test results for firefighters of different races constituted only a threshold showing, but fell far short of establishing the City could be liable for disparate impact discrimination. Accordingly, the Court made clear that a "strong basis in evidence" must be, in essence, evidence on which a finding of a disparate impact violation could rest.

Ricci is also noteworthy because the Supreme Court reversed a 2-1 per curiam decision in favor of the City of New Haven, issued by a Second Circuit panel that included Judge Sonia Sotomayor, whom President Obama nominated to succeed Justice David Souter on the Supreme Court. Because Justice Souter joined the dissent in Ricci, the 5-4 split on this issue would remain unchanged should the Senate confirm Sotomayor.