United States: U.S. Supreme Court Finds "Reverse" Racial Discrimination Claim Has Merit; Scales Back Use Of Racial Preferences

On June 29, 2009 a sharply divided Supreme Court announced a decision that may significantly affect the use of race-based preferences in the employment setting. Reversing the U.S. Court of Appeals for the Second Circuit, the Supreme Court held in Ricci et al. v. DeStefano et al., Slip Op. No. 07-1428 (June 29, 2009), that Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, did not permit the City of New Haven to throw out the positive results of promotion exams for 17 white and 2 Hispanic city firefighters because of its fear that if the test results were certified, the City might be sued under Title VII for using an exam that had an adverse impact on black firefighters; none of the black firefighters who sat for the exam had earned a high enough score to qualify for promotion. The Court held that, to permit the exam results to be disregarded on race-based grounds, the employer must "demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under [Title VII for] disparate-impact. . . ." The Court found that the City could not meet that threshold standard.

Background

In November and December 2003, the New Haven Fire Department administered written and oral examinations designed by outside experts to determine qualification for promotion to Lieutenant and Captain. For the 118 firemen who took the qualifying exams, the pass rate for black candidates was around half that of the rate for white candidates. The top 9 scorers on the Captain exam included 7 white and 2 Hispanic firefighters. All of the ten top scorers on the Lieutenant exam were white firefighters. Given that there were only 7 Captain vacancies and 8 Lieutenant vacancies, and the City charter mandated that each position must be filled from among the three highest scorers on the exam not yet promoted, the exam results meant that no black firefighters would be eligible for promotion to one of the 15 vacancies.

After the results became known, the City's Civil Service Board held hearings on whether to certify the test results or scrap them because of the exam's "adverse impact" on minorities. The City's counsel advised the Board that, in his opinion, the City would be liable for violating Title VII were it to certify the results. The Board split on whether to certify the exams, so the promotional lists were not certified. The City instead threw out the test results and made no promotions, citing its desire to avoid violating Title VII.

In response, Frank Ricci, sixteen other white and one Hispanic test takers, who likely would have been promoted on the strength of their test results, sued the City and others in the U.S. District Court for the District of Connecticut, alleging that by discarding the test results, the defendants discriminated against them based on their race, in violation of both Title VII and the Equal Protection Clause of the Fourteenth Amendment. The defendants argued that if they had certified the results, they could have faced liability under Title VII for adopting a practice that had a disparate impact on the black firefighters.

The District Court granted the City's motion for summary judgment and dismissed the case. It found that although the plaintiffs had established a prima facie case of discrimination on the grounds of race, the City had proffered a legitimate non-discriminatory reason for tossing out the exam results in its wish to comply with Title VII. The Court also rejected the plaintiffs' Equal Protection claims, finding that every applicant literally was treated the same in the City's refusal to certify the lists, and that the decision was made without discriminatory intent.

On appeal to the Court of Appeals for the Second Circuit, a three-judge panel that included Supreme Court nominee Sonia Sotomayor, issued an abrupt 8-sentence opinion affirming the District Court on June 9, 2008, characterizing the trial court's decision as "thorough, thoughtful and well-reasoned," as there were "no good alternatives" to throwing out the test scores. The panel concluded that the Civil Service Board was acting to "fulfill its obligations under Title VII" and adopted the trial court's opinion in its entirety.

The Supreme Court reversed the lower court's ruling and concluded that the City's decision was, in fact, racial discrimination in violation of Title VII. Justice Kennedy, writing for a 5-4 majority (Kennedy, Roberts, Scalia, Thomas, and Alito) declared that where employment testing or a selection process is open and fair, a racial imbalance in the results is not enough, by itself, to permit race-based action by an employer to invalidate or mitigate tests results or selection criteria that have a established a disparate impact on a specific group. Rather, an adverse impact on a group can justify a countervailing race-conscious measure only if there is "strong evidence" that the test or selection criterion not only disproportionately excludes more members of that group than whites, but also that the test or selection criterion either is not "job related" or that an equally effective and less discriminatory alternative existed. The Court found that the City threw out the test scores because of the plaintiffs' race and that, even though the exclusion of blacks from the promotion list established a prima facie case of race discrimination based on disparate impact, the City could not present "strong evidence" that the tests were not job-related or that an equally effective less discriminatory alternative actually existed.

The Court cautioned that this new "strong evidence" standard limits only statutory challenges to racial preferences challenged under Title VII, and not constitutional challenges. The Court, however, did not address the constitutional issues presented in the case.

The Significance Of This Decision

The long term impact of Ricci is difficult to gauge. Clearly the decision reinforces the need for employers to ensure that tests and other selection criteria are validated as job-related and to make genuine efforts to find less discriminatory alternatives to selection devices that adversely affect specific groups. Ricci also cautions great care in making efforts to target members of any race, ethnic group or gender for preferential treatment in hiring or promotion decisions without an order or some equivalent directive compelling the preferential treatment. Good intentions are a two-edged sword, and Ricci confirms that swords no longer are an effective defensive weapon.

www.schnader.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.