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On June 29, the U.S. Supreme Court issued a controversial 5-4 decision in Ricci v. DeStefano, holding that the city of New Haven, Connecticut engaged in intentional race discrimination when it decided not to use test results because doing so would have negatively impacted black firefighter candidates applying for promotions.
Factual Background
In 2003, 118 firefighters took examinations to qualify for promotions. Although the written and oral examinations had been carefully constructed by outside testing experts, white and Hispanic candidates scored significantly higher than black candidates on the examination. The net result was that, had the test results been used to make the promotion decisions, virtually all of the promotions would have gone to white candidates.
A series of public hearings followed about whether the city should certify and use the test results as a basis for its promotion decisions. Black community leaders threatened a discrimination lawsuit if the city used the results of the test. White candidates argued the test was fair, and disregarding the test would constitute reverse race discrimination against the white and Hispanic candidates who had performed well. After several days of contentious hearings, the city's Civil Service Board ultimately voted against using the test results.
White and Hispanic firefighters who were eligible for promotion because they had passed the test sued the city, alleging that it had discriminated against them on the basis of their race. The city defended its actions, arguing that certification of the test results could have resulted in liability under Title VII because the test disproportionately impacted black firefighters. The district court granted summary judgment for the city, holding that the city's decision not to use a test that disproportionately impacted certain minorities did not constitute the sort of intentional discrimination prohibited by Title VII. The Second Circuit affirmed.
Case Holding
The Supreme Court reversed, concluding that the city engaged in impermissible race discrimination under Title VII. The Court held that the city's decision, even if well-intentioned, clearly violated Title VII's provision that employers cannot take adverse employment actions based on an individual's race. The Court concluded that because the city's decision was based on race of the white firefighters, it was unlawful "absent some valid defense."
The Court then considered whether the city had a defense for its race-based action. In doing so, the Court articulated a new standard for courts to determine whether an employer can take race into account to avoid liability for disparate impact, or unintentional, discrimination. Specifically, the Court held that an employment action based on race "is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable" for disparate impact discrimination.
Here, the Court held that there was no support in the record to conclude that the city had a "strong basis in evidence" that it would have been liable for disparate impact discrimination if it had not discarded the test results. Although the black candidates could have proven a prima facie case of disparate impact because the test significantly and adversely affected blacks, this was not sufficient to show that the city had a strong basis in evidence that it would be liable. Rather, only if there had been strong basis in evidence that the examinations were not job-related and consistent with business necessity, or if there was strong basis in evidence that there was an equally valid, less-discriminatory alternative, would the city have a valid defense for not certifying the test results and promoting the white candidates. The Court then examined the factual record that the city's Civil Service Board had before it, and concluded that there was no such strong evidence. Notably, the Court explicitly rejected the city's argument that its "good-faith belief that its actions [were] necessary" to avoid an unlawful disproportionate impact on blacks sufficed to justify its decision.
Practical Implications for Employers
Although Ricci involved a public employer, its holding is equally applicable to private employers and their decisions about whether to base employment actions on employment tests that may adversely impact racial minorities.
Ricci makes clear that no employer may jettison a test or policy solely because it may have an adverse impact on racial minorities. Further, fear of potential litigation by adversely impacted racial minorities alone is not a sufficient defense for an employer to justify relying on race to the disadvantage of white employees or applicants.
Rather, under Ricci, the employer must use test results that have a disproportionate impact on a minority group unless there is strong evidence that the test result is not job related and consistent with business necessity or there is strong evidence that the employer could have achieved its objectives by deploying some other selection mechanism that would have had less of a disproportionate impact.
Because most private employers do not have "public hearings" on whether to "certify" test results, there really is no procedural step at which a private employer may seek to elicit from affected parties the sort of "strong evidence" referred to by the Court. It is hard to imagine private employers announcing test results, announcing that the results will disproportionately impact minorities and then soliciting evidence from minorities that proceeding to use the test results would be unlawful.
Since it is unlawful not to use the test results or to "re-score" the test to lessen the impact on minorities, it will become even more important for employers to be sure that tests have been professionally validated before the tests are administered.
If test results do have a disproportionate impact on minorities, one might expect that some employers who consider throwing out the test results will now seek a second opinion from another expert on test construction and administration. Such an employer would seek an expert opinion about whether there are equally valid selection methods that would have had less of a disproportionate impact on minorities. If such an opinion is obtained, the employer will then be left in the awkward position of having conflicting opinions from its own two experts. It is not clear whether even this would constitute "strong evidence" that not jettisoning the test results would be unlawful.