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Supreme Court Impacts Private Employers The recent Supreme Court case Ricci v. DiStefano will have an impact on private  employers since it concerns Title VII of the Civil Rights Act (which applies to private as well as public employers). The case arose out of a New Haven, Connecticut fire department promotion test. After no black firefighters were eligible for promotion due to the test, the city refused to use the test results as a basis for promotion. Eighteen eligible white firefighters and one Hispanic firefighter claimed "reverse discrimination."
The city argued it could have faced Title VII liability for adopting "disparate treatment" of minority officers by upholding the test results, but the Supreme Court responded that, "Fear of litigation alone cannot justify the city's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions."
The Court held that under Title VII, 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 action.
A threshold showing of a significant statistical disparity, and nothing more, is insufficient to show that the city would have been liable under Title VII. The Court said the city could be liable for disparate-impact discrimination only if 1) the exams at issue were not job related and consistent with business necessity, or 2) if there existed an equally valid, less discriminatory alternative that served the city's needs and the city failed to use it.
For employers, the Ricci case offers new guidance concerning the circumstances under which an employer can take race-conscious measures to avoid or remedy an unintentional, disparate impact on minority groups. Under Ricci, 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 action. This high burden is certain to be the basis for other challenges to employers' affirmative action policies throughout the United States. For more information regarding employer liability or labor laws, call or email our office. |
Employers Held Accountable for Supervisor Sexual Harassment
The Illinois Supreme Court recently found that  under the Illinois Human Rights Act (IHRA), an employer is responsible for sexual harassment by a supervisor, regardless of the supervisor's actual authority over the victim. This is contradictory of federal case law interpreting law against employment discrimination. Under federal law, an individual is not a "supervisor" for purposes of imposing strict liability on an employer unless the supervisor has the authority to affect the victim's employment directly. Formerly, Illinois court have followed suit, interpreting the IHRA as imposing strict liability on an employer only for sexual harassment of an employee by the employee's direct supervisor.
Expanding strict liability, the Illinois Supreme Court has recently said, "The issue...is whether an employer is strictly liable under [the IHRA] for the 'hostile environment' sexual harassment of its supervisory employees, where the supervisor has no authority to affect the terms and conditions of the complainant's employment. The answer is yes." The employer is responsible for the harassment of its supervisor "regardless of whether it was aware of the harassment or took measures to correct the harassment." The Court said the complainant still bears the burden of proving that the offending conduct is harassment.
Under federal law, the recent Illinois cases probably would have been decided differently. The supervisor would not have been considered a "supervisor" because he had no authority to affect directly the victim's terms and conditions of employment; he would have been considered a co-employee.
The Illinois Supreme Court refused to look at federal law to interpret the IHRA and held the IHRA does not contain this type of restriction on employer liability. As a result, an employer may be held liable for sexual harassment more easily under the IHRA than under federal law. Employers in Illinois should train supervisors and managers on preventing discrimination and harassment in the workplace. Policies should be clearly written in an employee handbook. Training should make employees aware of the consequences of violating company policy. Sivia Business & Legal Services attorneys are available to answer your questions about this case and to discuss the practice of preventive employment law. |
