When a group of White firefighters came out on top in a promotional exam, a Connecticut Fire Department became worried about possible racial bias in the exam. The reason for their concern was that nearly all of the minority candidates failed to qualify for promotion, while nearly all of the successful candidates were White. To remedy the perceived problem, the fire department threw out the test results and searched for a new test that would not favor White candidates. The White firefighters who were denied the promotion sued, arguing they were the true victims of discrimination. The Supreme Court agreed with the White firefighters. Here's what happened and why you should be concerned.
Federal job bias laws prohibit employers from engaging in intentional job bias (known as "disparate treatment"), based on race, sex and other listed factors. It also outlaws certain practices that are not intended to discriminate, but result nevertheless in a "disparate impact" against protected groups.
In the Ricci v. DeStefano case, the City of New Haven, Connecticut refused to certify the results of two promotional examinations for firefighters, because it was fearful of being sued for so-called disparate impact discrimination by African American and Hispanic candidates who fared poorly on the tests. The Supreme Court ruled that the City was liable for disparate treatment discrimination against the White candidates by refusing to certify the test results.
New Haven's City Charter requires that vacancies for promotions be filled by job-related examinations. Under the charter, only the top three scorers are eligible for a given promotion.
The City hired an Illinois company to design and administer exams that firefighter promotion candidates took in 2003. The exams were intended to measure candidates' job-related knowledge.
When the 2003 exams were scored, all 10 candidates eligible to be promoted to lieutenant, and seven of the nine candidates eligible to be promoted to captain, were White. Remarkably, none were African American. Under federal guidelines, such statistics raised a legal presumption of disparate impact discrimination against African-Americans and Hispanics.
The City sought opinions from three outside experts. After hearing from these witnesses and others, the City's Civil Service Board ruled that the test results should not be certified.
A federal trial court judge ruled the City did not act with discriminatory intent because it took the action in good faith to avoid basing the promotions "on a test with a racially disparate impact."
On appeal, the Second Circuit U.S. Court of Appeals upheld this ruling in an unpublished, one-paragraph order. Notably, one of the three judges on the appellate panel was Supreme Court nominee Sonia Sotomayor.
By a 5-4 vote, the majority of the Supreme Court ruled that the White firefighters were indeed victims of intentional race discrimination, no matter how well intentioned the City's actions may have been.
The Court reasoned that the City was liable for disparate treatment discrimination against the successful White candidates "absent some valid defense." In doing so, the Court rejected the City's claim that it was immune from suit because its stated motivation was to avoid basing promotions on an exam with a racially disparate impact. The Supreme Court stated that although the City's aim might have been "well intentioned or benevolent," it still "rejected the test results solely because the higher scoring candidates were White."
The Court also rejected the White firefighters' contention that they should win the lawsuit unless the employer was able to prove that the test had an illegal disparate impact on minority candidates. In the Court's view, this "would bring compliance efforts to a near standstill," and cause employers to "hesitate before taking voluntary action for fear of later being proven wrong" in a lawsuit and then held liable for disparate treatment.
On the other hand, the Court disagreed with the notion that the City could avoid disparate treatment liability altogether simply because it claimed to have acted in "good faith" or had "good cause" to believe it may be liable for disparate impact discrimination.
Rather, the Court came up with a new and difficult standard to follow: an employer must have a "strong basis in evidence" that its actions were necessary to avoid disparate impact liability. In other words, the Court will require more than a mere suspicion by the employer that the test discriminates, but less than actual certainty.
Although the Court did not further define this "strong basis in evidence" standard, it nevertheless found that the City failed to satisfy it. Even though the Court conceded "[t]he racial adverse impact here was significant," it found no "objective, strong basis in evidence" for the City to justify its fear that the test illegally discriminates against minority applicants.
The Supreme Court concluded "[f]ear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions."
The Ricci decision still allows employers to adjust their standards for future promotion or hiring decisions so as to minimize the risk for disparate impact liability. However, the Court's decision dramatically reduces employers' options for avoiding litigation based on statistical evidence of disparate impact after a test or other qualification standard is used.
Supreme Court nominee Sotomayor has been on the hot seat this week over her decision to dismiss the White firefighters' claims. It is possible that the Democratic controlled Congress will consider legislation that would overrule the case. Some commentators have even gone so far as to suggest that this is the beginning of the end of affirmative action as we know it.
For the time being, employers will need to be proactive to ensure in advance that promotion and qualification standards are neither biased, nor likely to result in a disparate impact based on race, gender or other unlawful factors.
Your contact at the Firm is ready to assist you if you have any questions about this topic, or wish to arrange for a review of qualification standards or other policies that are likely to engender discrimination complaints.
