BLAWG

Yesterday, in Ricci v. DeStefano, the U.S. Supreme Court held that the City of New Haven, Connecticut discriminated against white firefighters, under Title VII of the Civil Rights Act, by discarding promotional test results.

In Ricci, the fire department had employed an examination to determine which firefighters qualified for promotions to the ranks of lieutenant and captain. Of the 19 firefighters that qualified for promotions based on these exams, none were black and only two were Hispanic. This left the City in a no-win situation under Title VII. On the one hand, if the City certified the test results, the minority firefighters threatened to sue because the test had a disproportionally adverse effect on minorities. On the other hand, if the city threw out the test results, the white firefighters threatened lawsuits alleging reverse discrimination. Ultimately, the City voted to discard the test results. As expected, 18 firefighters that qualified for promotions based on their test scores—including one Hispanic firefighter—sued the City for intentional discrimination (i.e., disparate treatment) under Title VII.

The 5-to-4 majority in Ricci found that “the City rejected the test results solely because the higher scoring candidates were white.” The majority stated that, without some other justification, this “express, race-based decision-making is prohibited” by Title VII.

Next, the Ricci Court provided “guidance to employers and courts for situations when [the prohibition against disparate impact and disparate treatment under Title VII] could be in conflict absent a rule to reconcile them.” The Court borrowed from its analysis of Equal Protection cases under the Fourteenth Amendment and applied a “strong-basis-in-evidence” standard. Under this standard, the Court held:

Before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer 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 act.

Although all nine justices agreed that the racially adverse impact of the test results constituted a prima facie case of disparate-impact liability, the majority held that the test results alone could did not satisfy the “strong-basis-in-evidence” standard. The majority explained:

The City could be liable for disparate-impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt.

Ultimately, the Court concluded that the tests were not deficient in either respect.

While it may provide a clue of where the Supreme Court is headed on future employment discrimination cases, the Ricci decision appears to apply only to disparate-impact cases where an employer intentionally discriminates against one class of employees in order to avoid the disparate impact of a policy or practice on another class of employees. In such cases, employees asserting disparate-impact claims will have to meet the higher “strong-basis-in-evidence” standard.