U.S. Supreme Court Rules That City Discriminated Against White Firefighters In Landmark Reverse Discrimination Case
Earlier this Summer, the Supreme Court of the United States handed down its highly anticipated ruling in Ricci v. DeStefano, 129 S. Ct. 2658 (2009). The controversial case, previously argued before Judge Sonia Sotomayor of the United States Court of Appeals for the Second Circuit, drew national media attention when she was recently nominated to the Supreme Court. The case presented the issue of whether the city of New Haven, Connecticut, fearing a disparate impact lawsuit by minority firefighters, discriminated against White firefighters when it set aside results of its promotion examinations because the White firefighters substantially outperformed the minority firefighters. By discarding the results, and thus not promoting the White firefighters, the Supreme Court found that the City violated Title VII’s prohibition of disparate treatment based on race, thus, reversing the lower courts.
The City hired a consultant, Industrial/Organizational Solutions, Inc. (“IOS”), specializing in designing entry-level and promotional exams for fire and police departments, to develop and administer an exam to be used to fill vacant lieutenant and captain positions in the City’s fire department. IOS engaged in a deliberate process to create an effective and racially neutral exam. The process included interviewing and riding along with several incumbents and performing job analyses to identify tasks, skills, knowledge, and abilities most necessary for the lieutenant and captain positions. Throughout the process, IOS used sample groups which over-represented minorities to ensure no unintentional racial bias in the exam questions.
118 candidates took either the lieutenant or captain promotion exam. 68 of the examinees were White, 27 were Black, and 23 were Hispanic. As a result of the exam, 17 White firefighters and 2 Hispanic firefighters were eligible for immediate promotion, but no Black firefighters were eligible. The New Haven Civil Service Board (“CSB”) held several meetings to determine whether the exam results should be certified, in accordance with standard certification procedures. After hearing a number of arguments, the CSB was ultimately convinced that because the results adversely affected the Black firefighters, the City was at risk for a Title VII disparate impact lawsuit. The CSB, therefore, decided to not certify the results.
The White and Hispanic firefighters who were denied a chance at promotion filed a Title VII lawsuit claiming disparate treatment. The district court found in favor of the City, holding that the City had no discriminatory intent in deciding to not certify the test. The Court of Appeals for the Second Circuit affirmed. The firefighters appealed the decision to the Supreme Court of the United States.
Supreme Court’s Ruling
The Supreme Court defined the issue in this case as a question of how to reconcile two Title VII prohibitions in certain situations. On the one hand, Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex and national origin (disparate treatment). On the other hand, it prohibits policies or practices that are not intended to discriminate but in fact have a disproportionate adverse effect on minorities (disparate impact). A conflict arises when, in attempting to prevent or remedy disparate impact discrimination, the employer engages in acts resembling disparate treatment discrimination.
The Court began its analysis with the premise that the City’s decision to not certify the test results would violate the disparate treatment prohibition absent some valid defense. The question then became whether the purpose to avoid disparate impact liability under Title VII excuses what otherwise would be prohibited disparate treatment discrimination. To reconcile the two prohibitions, the Court applied the “strong-basis-in-evidence” test—the City must have had a strong-basis-in-evidence that it would be subject to disparate impact liability to the Black firefighters if it failed to take the race-conscious discriminatory action towards the White and Hispanic firefighters.
The Court concluded that the City’s rejection of the exam results did not satisfy the strong-basis-in-evidence requirement. First, the Court explained that in order for the City to have been liable to the Black firefighters under Title VII, something more than a prima facie case of disparate impact liability must be shown. Disparate impact liability would also require a showing that the exam was not job related or consistent with business necessity, or that there was an equally valid, less discriminatory alternative that the City refused to adopt. However, the Court found that the extensive steps taken to develop and administer an effective exam ensured that the exam was appropriate and relevant, and that, further, the City lacked a strong-basis-in-evidence showing that there existed an equally valid, less discriminatory alternative that it refused to adopt.
Ultimately, in reversing the ruling of the lower courts, the Supreme Court found that discarding the exam results was an impermissible discriminatory act under Title VII. The City did not have a strong-basis-in-evidence showing that it would have been liable for a disparate impact claim if it certified the results and promoted the firefighters in accordance with the exam results.
All employers—both public and private—are impacted by this ruling, which balances the fine line between preventing both disparate treatment and disparate impact discrimination. The decision reminds employers to be mindful that, when attempting to protect minority employees from the discriminatory impact of facially neutral policies and procedures, they must not discriminate against other workers in the process. As a result of the ruling, employers should examine their testing procedures to ensure that they are indeed neutral and carefully designed to minimize any adverse impact on protected classes of individuals in hiring, promotions, compensation, and termination decisions. While Ricci confirms that an initial showing of disproportionate adverse effects will not alone impose liability, employers will need to be able to demonstrate that their exams were relevant to the job and closely aligned with the business’s needs, and that the employer did not reject a less discriminatory, equally effective approach. The decision does not prevent employers from ultimately deciding not to proceed with a hiring or other employment decision based on testing results, as long as the reason for not proceeding is not unlawful under Title VII.
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