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Supreme Court rules in firefighter ‘reverse’ discrimination case

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in Discrimination and Harassment,Human Resources

The U.S. Supreme Court has ruled that the city of New Haven, Conn., violated the rights of white and Hispanic firefighters who took promotion exams when it refused to use the test results to promote the highest scorers.

The court ruled that the city could not use “[f]ear of litigation alone” to justify rejecting the results simply because the test appeared to have a disparate impact on another minority—namely the black firefighters who took the test.

The case was Ricci v. DeStefano, No. 07–1428, U.S. Supreme Court, 2009.

The infamous exams

In 2003, the city of New Haven administered exams, designed by a third-party contractor, to firefighters seeking promotion to lieutenant and captain.

After the tests, the New Haven Civil Service Board (CSB) certified a ranked list of applicants who passed. The city charter required the “rule of three,” which meant that anyone selected for promotion had to be among the three candidates with the highest scores.

For the lieutenant exam, candidates included 43 whites, 19 blacks and 15 Hispanics. Twenty-five whites, six blacks and three Hispanics passed the exam. All of the top 10 scorers were white; there were only eight lieutenant vacancies.

For the captain exam, 25 whites, eight blacks and eight Hispanics were tested. Sixteen whites, three blacks and three Hispanics passed. There were only seven captain vacancies. The top nine scorers on the captain exam included seven whites and two Hispanics.

Tossed out

Based on concerns over a possible disparate impact on racial minorities, the CSB declined to certify the lists, and no one was promoted. The white and Hispanic firefighters sued the city for race discrimination.

A federal district court rejected the discrimination claims. A three-judge panel of the 2nd Circuit Court of Appeals (which included Supreme Court Justice nominee Judge Sonia Sotomayor) ruled in favor of New Haven because it was “simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact.” The firefighters appealed to the U.S. Supreme Court.

Disparate treatment vs. impact

Title VII prohibits both intentional discrimination (disparate treatment), as well as unintentional discrimination resulting from practices that, while not intended to discriminate, have a disproportionately adverse effect on members of a particular classification (disparate impact).

The firefighters argued that New Haven discriminated against them in violation of Title VII’s disparate treatment provision. The city countered that it had a good-faith belief that, had it certified the test results, it would have violated the disparate impact provision.

The Supreme Court found that the city’s rejection of the test results was “express, race-based decision-making” that violated the disparate treatment prohibition of Title VII absent some valid defense. The court next considered whether the city’s effort to avoid disparate impact liability justified disparate treatment against the firefighters.

The court said actions based on race are 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 under the disparate impact statute.

The court said there was no such evidence in the Ricci case.

New Haven would have been liable under the disparate impact theory only if it was unable to show that the examinations were job-related and consistent with business necessity, and if the city refused to adopt an available alternative practice that had less disparate impact but still served the city’s needs.

The court reasoned that the examinations were clearly job-related and consistent with business necessity.

Because there was no genuine dispute that the city lacked a strong basis in evidence to believe it would face disparate impact liability if it certified the test results, the court held that Title VII did not permit it to disregard the test results.


Author: Joshua M. Davis is the managing shareholder of the Boston office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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