Supreme Court Ricci Decision

Supreme Court Finds City Discriminated Against White And Hispanic Firefighters In Its Refusal To Certify Promotional Testing Results

In Ricci v. DeStefano, 129 S. Ct. 2658 (2009), the U.S. Supreme Court held that the City of New Haven discriminated on the basis of race when it refused to certify the results of a promotional test on which white and Hispanic firefighters outperformed their black colleagues. In a 5-4 ruling, the Court rejected the City’s argument that it disregarded the test results to avoid violating Title VII’s disparate-impact provisions. Justice Kennedy, writing for the majority, observed that “race-based action like the City’s in this case is impermissible under Title VII of the Civil Rights Act of 1964 (Title VII) unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.” The Court concluded that the City failed to demonstrate a “strong basis in evidence” for invalidating the results of its promotional test.

The City argued that its refusal to certify the results was permissible because it could not make promotion decisions based on a test that had a racially disparate impact. Rejecting this argument, Justice Kennedy wrote: “[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.” However, the Court also rejected plaintiffs’ suggestion that employers should be required to show that there is in fact a disparate-impact violation before scrapping test results, calling this approach “overly simplistic and too restrictive.” Instead, the majority established a “strong basis in evidence” standard to reconcile what it viewed as two competing provisions within Title VII prohibiting “disparate-treatment” on the one hand, and “disparate-impact” on the other. 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.” This standard “leaves ample room for employers’ voluntary compliance efforts,” the Court concluded.

The City would only be liable under a disparate-impact theory, the Court concluded, if the examinations were not job-related and consistent with business necessity or if the City could have adopted an equally effective and less discriminatory alternative for selecting candidates who should be promoted. “[A] threshold showing of significant statistical disparity, … and nothing more[,] is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results,” Justice Kennedy wrote. According to the majority, the City failed to demonstrate a strong basis in evidence that the promotion exams were not job-related and consistent with business necessity or that there was an equally valid, less-discriminatory alternative. In so concluding, the majority seemed to indicate that an employer can avoid disparate-impact liability “based on a strong basis in evidence” by showing that, “had it not certified [test] results, it would have been subject to disparate-treatment liability.”