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Supreme Court Vindicates Reverse Discrimination Claim

By Kristine L. Roberts, Litigation News Associate Editor – August 27, 2009

In Ricci v. DeStefano, the U.S. Supreme Court ruled 5–4 that the city of New Haven, Connecticut, improperly discarded promotion exams in which white firefighters outperformed minority firefighters. The decision provides guidance for employers using tests in hiring and promotions. However, Ricci’s impact beyond its fact pattern is unclear, and the divided decision suggests that there will be continued litigation on the questions Ricci raises about disparate impact and equal protection.

In 2003, New Haven administered written and oral examinations for promotion to lieutenant and captain. The passing rate of white candidates was approximately double the passing rate of minority candidates. Based on the test scores, no African-American firefighters were eligible for promotion. The city decided not to certify the results, after its counsel advised that the city faced disparate-impact liability under Title VII.

A group of 18 firefighters (17 white and 1 Hispanic) sued. The lawsuit alleged that New Haven discriminated based on race in violation of both Title VII and the Equal Protection Clause. The city’s defense was its good-faith belief that certifying the test results would have violated Title VII’s disparate-impact prohibition. The district court granted summary judgment [PDF] for the city, and the U.S. Court of Appeals for the Second Circuit upheld the ruling.

High Court Review
The Supreme Court reversed, ruling that the city violated Title VII of the Civil Rights Act of 1964 and holding that an employer must have a “strong basis in evidence” before it can make employment decisions based on fear of disparate-impact liability. That standard requires that an employer have a “strong basis” before it can discriminate based on race for the purpose of avoiding disparate impact.

Justice Anthony M. Kennedy, writing for the majority, explained that New Haven could be liable “only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative.” The Court held that a “statistical disparity based on race” is not enough to justify “race-conscious, discriminatory action.”

Justice Ruth Bader Ginsberg wrote a biting dissent, predicting that the opinion “will not have staying power.” The dissent took issue with the majority’s recitation of the facts and argued that the city had “ample cause” to conclude that its tests were flawed and not justified by business necessity. Justice Ginsburg said the Court ignored the landmark decision of Griggs v. Duke Power Co. and relied on “particularly inapt” equal protection cases.

Concurring Opinions
Justice Samuel A. Alito Jr. and Justice Antonin Scalia each wrote concurring opinions, with Justice Alito criticizing the dissent for omitting facts.

Justice Scalia questioned whether Title VII’s disparate-impact provisions are consistent with the Equal Protection Clause. “[T]he war between disparate impact and equal protection will be waged sooner or later,” he wrote.

Ideological Divide
“The ideological disagreement that divided the Court so starkly was whether the city showed a significant statistical disparity but nothing more to support its position that it had to set aside the test results,” says Todd A. Holleman, Detroit, MI, cochair of the ABA Section of Litigation’s Appellate Practice Committee.

“The majority concluded that the mere results of an otherwise defensible test and process that met Title VII standards were insufficient to justify the discriminatory response of the city in refusing to certify the test results; whereas the dissent believed that there were facts that went beyond just the results to justify the city’s action,” Holleman says.

Affect on Employee Testing
What does the ruling mean for employee testing? Ricci provides a “roadmap” to what is acceptable in developing and carrying out a test, says Holleman.

Kimberly Stith, Houston, TX, cochair of the Section’s Employment and Labor Relations Law Committee, says “employers should have qualified testing consultants involved. An employer must also engage in a rigorous validation process—a detailed assessment of whether its test relates to job criteria and whether it faces disparate-impact liability.”

“After Ricci, some employers may question whether testing is necessary and whether it benefits them,” she says.

Stith cautions employers who decide to use testing against modifying test procedures midstream to arrive at a particular result. “In this sense, Ricci’s prohibition against results-based selection criteria is nothing new,” she adds.

Expansion of the Ruling
“This opinion may reinvigorate reverse discrimination cases that fit its fact pattern, but there may not be many that do so,” says Holleman.

Stith agrees, observing that the Court “framed the issue tightly” and that not a lot of employers are discarding test results simply because of the fear of disparate-impact liability. Still, it is unclear whether courts will expand Ricci v. DeStefano beyond the facts of the case, says Stith.

“This is not the last chapter in the book on this issue,” says Holleman. The equal protection question highlighted by Justice Scalia must be decided, he says, and Justice Ginsburg’s comment that the opinion lacks staying power “signals that this is not likely the end of the story.”

Keywords: Supreme Court, discrimination


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