On June 29, 2009, the Supreme Court issued its long-awaited decision in Ricci, et al. v. Destefano, et al., also known as the New Haven firefighters "reverse" discrimination case. The case is significant because it establishes that an employer may not manipulate the results of legitimate, job-related promotional examinations to obtain a more diverse workforce absent a showing that there is a strong basis in evidence to believe the employer will be subject to disparate impact liability if it fails to take the race conscious discriminatory action. The case breaks new ground by resolving potential conflicts between disparate treatment and disparate impact claims, and presents new challenges for employers faced with potential litigation arising from testing requirements or other facially-neutral employment practices.
Summary of the Facts
The New Haven Fire Department conducted written and oral examinations for promotions to the ranks of Captain and Lieutenant. Each exam or test had previously been validated -- that is, they were job related and race neutral. Of the 41 employees who took the Captain examination, 25 were white, eight black and eight Hispanic. Based on the examination results, it appeared that "no blacks and at most two Hispanics would be eligible for promotion" to Captain. Of the 77 employees who took the Lieutenant's examination, 43 were white, 19 black, and 15 Hispanic. The Lieutenant's examination results indicated that no blacks or Hispanics would be promoted.
New Haven's Civil Service Board (CSB) conducted hearings on certifying the examination results and allowing promotions in accordance with the Firefighters' union contract. Given the test results, the CSB was afraid that it would face a lawsuit from non-white applicants who did not score high enough on the tests to be eligible for promotion. The poor showing from minorities appeared to establish a potential "disparate impact" claim -- that is, while the test was not intended to discriminate it appeared to do so. For this reason, and fearing a potential lawsuit, the CSB failed to certify the examinations and no individuals were promoted from either promotion list.
The firefighters who were eligible for promotion (17 whites and one Hispanic) sued claiming the CSB's decision was clearly intentional discrimination ("disparate treatment") against white firefighters, violating, among other laws, Title VII and the Equal Protection Clause. Ricci, the lead plaintiff, has dyslexia, and had engaged in extensive training and studying in the hopes of being promoted. He, along with the other plaintiffs, would have been promoted "but for" the city's actions. The case presented "the opposite scenario of the usual challenge to an employment or promotional exam, as plaintiffs attack[ed] not the use of allegedly racially discriminatory exam results, but the city's refusal to use the results of an exam that had been previously validated as race neutral." The trial court observed that "the city's reasons for advocating non-certification [of the tests] were related to the racial distribution of the results" and "[a] jury could infer that the defendants were motivated by concern that too many whites and not enough minorities would be promoted" based on the test results. Nevertheless, the court granted summary judgment for the City because, in its view, the City was acting to avoid making promotions based on a test that had a racially disparate impact on blacks and Hispanics. Thus, the trial court held there was no discriminatory intent and no violation of Title VII. The Equal Protection claim also was rejected because, while the City admittedly acted based on racial considerations, the rejection of the test results did not result in any other promotions and "nothing in the record .... suggests that the city defendants or CSB acted because of discriminatory animus towards plaintiffs or other non-minority applicants for promotion."
The Supreme Court Ruling
The Supreme Court rejected strongly the trial court's analysis and decision. In a 5-4 opinion written by Justice Kennedy, and joined by Chief Justice Roberts and Justices Scalia, Thomas and Alito, the Court held that the decision to reject the test results is one that "is based on race" in violation of Title VII's disparate treatment clause. Further, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying unintentional disparate impact discrimination, it must "have a strong basis in evidence to believe it will be subject to disparate impact liability if it fails to take the race conscious discriminatory action." The mere fear of a lawsuit is not sufficient.
Moreover, after reviewing the record, the Court found that even a significant statistical disparity, such as the one that existed in this case, is not enough to satisfy the "strong basis in evidence standard." Because the City had pre-validated its tests and they were clearly job related, the City would have prevailed in any disparate impact challenge. For these reasons, the Court held that the City discriminated against the non-promoted firefighters in violation of Title VII.
In dissent, Justice Ginsberg, joined by Justices Stevens, Souter and Breyer, refutes the notion that the City's decision to reject the test results was "based on race." As a result, she rejects the "strong basis in evidence standard," concluding, instead, that employers need only show "good cause to believe the devise (test) would not withstand the examination for business necessity."
The Court's ruling limits an employer's ability to use the threat of disparate impact claims to invalidate test results. An employer, at least with respect to certain promotional and other exams, must, in essence, show that it would be found liable for discrimination if a minority or minority group were to sue based on their poor performance on the exam. The decision demonstrates, in a broader sense, the Court's unwillingness to accept manipulation of test results simply to obtain more racially diverse promotions, and, for this reason, may foretell a more critical view in the future toward race-based decision-making, regardless of the employer's good intentions.
Though significant, the Court's decision re-affirms what most employers know already: to the extent that they offer promotional tests, they need to ensure, before their administration, the tests are race neutral and fair to all. While the Court unequivocally states that the results of such tests may not be invalidated or discarded after their administration in the absence of a strong basis in evidence to believe they will be subject to disparate impact litigation, it offers little guidance on when this standard will be met. Only one thing is certain: a statistical disparity, coupled with the threat of disparate impact litigation, is not enough to invalidate or discard test results. By analyzing and confirming that promotional tests are race neutral prior to their administration, employers minimize the conditions that give rise to potential disparate impact litigation and concomitantly the need to examine whether a strong basis in evidence to believe that the threat of such litigation exists.
Finally, while not the subject of the opinion, the Court's decision has the potential to impact employers engaged in voluntary affirmative action programs. Should a risk assessment or an impact study reveal a statistical disparity among the races, employers should carefully examine the types of remedial measures they pursue.