On April 22, the U.S. Supreme Court heard oral arguments regarding the internal clash between Title VII’s disparate impact and disparate treatment provisions. Ricci v. DeStefano, U.S., No. 07-1428 (oral argument 4/22/09). The case is based upon the city of New Haven’s decision not to certify the results of two 2003 firefighter promotional exams - one for captain, and one for lieutenant – when 14 of the top 15 scores were earned by white candidates. The district court dismissed a lawsuit filed in 2004 on behalf of 17 white and one Hispanic firefighters; that decision was upheld by the 2d U.S. Circuit Court of Appeals. The case was accepted for argument by the Supreme Court, primarily to address the issue of whether the city’s decision violated Title VII and/or the 14th Amendment’s Equal Protection Clause.
Title VII prohibits employers from treating applicants (or employees) differently because of their membership in a protected class. This concept is known as “disparate treatment.” The central issue in a disparate treatment analysis is whether the employer's actions were motivated by discriminatory intent. However, even when an employer is not motivated by discriminatory intent, Title VII prohibits the employer from using a facially neutral employment practice if that practice has an unjustified adverse impact on members of a protected class. This is “disparate impact.” While both concepts are prohibited under Title VII, the arguments heard by the Supreme Court in the Ricci case highlight the internal inconsistency with which employers can be faced when testing candidates for employment positions.
The facts of the case are largely undisputed: in 2003, the City of New Haven conducted promotional exams for firefighter officer positions. Of the 41 applicants who took the exam for Captain, 25 were white, eight were black, and eight were Hispanic. The top nine scorers for the seven available positions included seven white candidates and two Hispanics. Of the 77 candidates for the eight Lieutenant vacancies, 43 were white, 19 were Black, and 15 were Hispanic. The top 10 scorers all were white.
The New Haven Civil Service Board (CSB) held a series of hearings on the issue of whether the test results should be certified. After the final hearing, the Board was split (two to two) on the question of certification. As a result, the promotional lists were not certified. A group of candidates filed a lawsuit arguing that the City’s expressed desire to comply with Title VII’s anti-disparate impact requirements was simply a pretext for intentional (disparate treatment) discrimination against white candidates.
The interesting aspect of the case is that the plaintiffs do not dispute that the test results showed a racially adverse impact on African-American candidates for both positions. In other words, had the minority candidates challenged the results of the exams, the City would have had to defend tests that, under EEOC guidelines, presumptively had a disparate racial impact.
The issue presented to the district court was whether the City had violated Title VII or the 14th Amendment’s Equal Protection Clause by refusing to certify the test results, or by employing a race-based classification system for promotion. The lower court found that the City’s motivation to avoid making promotions based upon a test with a racially disparate impact does not, as a matter of law, constitute the discriminatory intent necessary for a Title VII violation. Further, the court held that the intent to remedy the disparate impact of the tests is not the functional equivalent of intent to discriminate against the non-minority applicants.
The court granted summary judgment in the defendants’ favor, and the decision was upheld by the appellate court. The Supreme Court has now heard oral arguments on the case; a written decision is expected to be issued in June. The case is procedurally complex and issue-intense, but is one worth following, as it has the potential to alter the way that Title VII is viewed by the courts in general and, as a specific matter, may help to resolve in internal conflict within that statute with respect to “reverse discrimination” cases, and provide guidance to employer who find themselves in a situation similar to that of the City of New Haven.