On June 29, 2009, the Supreme Court addressed a provocative question about the current state of workplace diversity in the United States. In the controversial Ricci v. DeStefano decision, the Court determined by a vote of 5-4 that only in very narrow circumstances can public employers engage in disparate-treatment discrimination to avoid violating the disparate impact provision of Title VII of the Civil Rights Act. In order to make a race-conscious preventative decision, an employer must have a strong basis in evidence that a given selection method was deficient and that discarding that method’s results is necessary to avoid creating a disparate racial impact.

Title VII protects employees from two types of discrimination based upon race, color, religion, sex, and national origin: intentional acts of discrimination (disparate treatment), and facially neutral policies and practices that have a disproportionate adverse effect on minorities (disparate impact). If an employee makes a prima facie showing of disparate impact discrimination, the burden then shifts to the employer to prove that the practice in question is job related and consistent with business necessity. Even if the employer meets this burden, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has a lesser disparate impact and serves the employer’s legitimate needs. Ricci posed the question of under what circumstances an employer may take race-conscious action to avoid disparate-impact liability given this statutory scheme.

The dispute in Ricci emerged from a 2003 examination administered by the City of New Haven, Connecticut, to qualify firefighters for promotion. The City’s charter required that New Haven fill vacancies in the classified civil service ranks with the most qualified individuals as determined by job-related examinations. To accomplish this objective, the City hired a third party consultant to develop an examination based upon analyses of the positions available for promotion. The test results qualified 17 white candidates, two Hispanic candidates, and no black candidates for promotion. Although it was unclear whether the City could develop an effective alternative test, the City determined that certification of the test results could subject the City to liability because of the test’s disparate racial impact. As a result, the City promoted no one.

A group of white and Hispanic firefighters who would have been promoted based upon the original test results claimed that the City had discriminated against them because of their race. The District Court granted summary judgment in favor of the City. The Court of Appeals affirmed the judgment, and the Supreme Court reversed, entering summary judgment in favor of the petitioner firefighters.

At least rhetorically, Justice Kennedy’s majority opinion rejected the petitioner’s position that an employer can never take race-based promotional action to avoid disparate impact liability. The Court also expressed concerns that, conversely, a focus on racial statistics could allow an employer to discard test results simply to obtain a preferred racial balance. The Court consequently determined that an employer could take race-conscious action only when there existed a “strong basis in evidence” that it would be exposed to a disparate impact claim if it failed to take that action. In other words, an employer must uphold racially disproportionate test results unless there exists strong evidence that the selection method itself was either 1) not job related and consistent with business necessity or 2) that the employer had refused to adopt an equally effective, non-discriminatory alternative practice. The majority did not define what constitutes a “strong basis in evidence.” It concluded, however, that while the significant statistical disparity exhibited by the New Haven test results amounted to a prima facie showing of disparate impact, those statistics did not meet the “strong basis in evidence” standard.

In her dissent, Justice Ginsburg, who spent a significant part of her early career advocating for gender equality, objected both to the majority’s newly established standard and to the application of that standard to the facts of the case. Ginsburg noted that the “strong basis in evidence” standard created a barrier for public employers seeking to comply with Title VII’s disparate impact provision. The dissent suggested instead that an employer may lawfully discard racially disproportionate results so long as it has good cause to believe that its selection method would not withstand an examination for business necessity. The dissenters further objected to the majority’s conclusion that the facts of the case warranted an entry of summary judgment under the new standard. Ginsburg pointed out that not only had the qualification examinations yielded racially disproportionate results, but those results were underscored by a long history of discrimination both in New Haven and in firefighting generally that had significantly disadvantaged black firefighters. The majority’s conclusion thus raised the question that if the facts of Ricci did not meet the new standard, what facts would amount to a “strong basis in evidence”?

The dissent’s criticism of the majority’s “strong basis in evidence” standard highlights the dilemma now faced by employers confronted with the possibility of disparate impact liability. While the majority ostensibly rejected a prohibition on employer race-based action to counteract or remedy racial disparities, its determination that the facts of the Ricci case did not meet the new standard sets a high bar for a public employer to meet before engaging in race-conscious action.