Ricci v. DeStefano
Encyclopedia
Ricci v. DeStefano, 129 S. Ct. 2658, 2671, 174 L. Ed. 2d 490 (2009) is a decision by the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 arising from a lawsuit brought against the city of New Haven
New Haven, Connecticut
New Haven is the second-largest city in Connecticut and the sixth-largest in New England. According to the 2010 Census, New Haven's population increased by 5.0% between 2000 and 2010, a rate higher than that of the State of Connecticut, and higher than that of the state's five largest cities, and...

, Connecticut
Connecticut
Connecticut is a state in the New England region of the northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, and the state of New York to the west and the south .Connecticut is named for the Connecticut River, the major U.S. river that approximately...

 by twenty city firefighters alleging that the city discriminated
Racism
Racism is the belief that inherent different traits in human racial groups justify discrimination. In the modern English language, the term "racism" is used predominantly as a pejorative epithet. It is applied especially to the practice or advocacy of racial discrimination of a pernicious nature...

 against them with regard to promotions. The firefighters, nineteen of whom are white
White American
White Americans are people of the United States who are considered or consider themselves White. The United States Census Bureau defines White people as those "having origins in any of the original peoples of Europe, the Middle East, or North Africa...

 and one of whom is Hispanic
Hispanic and Latino Americans
Hispanic or Latino Americans are Americans with origins in the Hispanic countries of Latin America or in Spain, and in general all persons in the United States who self-identify as Hispanic or Latino.1990 Census of Population and Housing: A self-designated classification for people whose origins...

, had all passed the test for promotions to management. City of New Haven officials invalidated the test results because none of the black firefighters who passed the exam had scored high enough to be considered for the positions. They stated that they feared a lawsuit over the test's adverse impact on a protected minority. The complainants claimed they were denied the promotions because of their race—a form of racial discrimination.

The Supreme Court heard the case on April 22, 2009, and issued its decision on June 29, 2009. The Court held 5-4 that New Haven's decision to ignore the test results violated Title VII of the Civil Rights Act of 1964
Civil Rights Act of 1964
The Civil Rights Act of 1964 was a landmark piece of legislation in the United States that outlawed major forms of discrimination against African Americans and women, including racial segregation...

.

Examinations

In November and December 2003, the New Haven Fire Department administered written and oral examinations for promotion to Lieutenant
Lieutenant
A lieutenant is a junior commissioned officer in many nations' armed forces. Typically, the rank of lieutenant in naval usage, while still a junior officer rank, is senior to the army rank...

 and Captain
Fire captain
Captain is a rank in various fire services.In most American and Canadian fire services, a captain ranks above a lieutenant and below a Battalion Chief. This varies, though, between departments – in the Boston Fire Department, the captain is the officer in overall charge of a fire company...

. The City's Department of Human Resources issued an RFP
Request for Proposal
A request for proposal is issued at an early stage in a procurement process, where an invitation is presented for suppliers, often through a bidding process, to submit a proposal on a specific commodity or service. The RFP process brings structure to the procurement decision and is meant to...

 for these examinations, as a result of which I/O Solutions ("IOS") designed the examinations. Under the contract between the City and the New Haven firefighters' union, the written exam result counted for 60% of an applicant's score and the oral exam for 40%. Those with a total score above 70% on the exam would pass.

For the 118 firefighters who took the exams, the pass rate for black candidates was approximately half that of the corresponding rate for white candidates:
  • The passage rate for the Captain exam was: 16 (64%) of the 25 whites; 3 (38%) of the 8 blacks; 3 (38%) of the 8 Hispanics. The top 9 scorers included 7 whites and 2 Hispanics; given that there were 7 Captain vacancies when the tests were administered, and that the "Rule of Three" in the City Charter mandates that a civil service position be filled from among the three individuals with the highest scores on the exam, it appeared that no blacks and at most two Hispanics would be eligible for promotion.
  • The passage rate for the Lieutenant exam was: 25 (58%) of the 43 whites; 6 (32%) of the 19 blacks; 3 (20%) of the 15 Hispanics. All the top 10 scorers were white; given that there were 8 vacancies, under the "Rule of Three" it appeared that no blacks or Hispanics would be eligible for promotion.

Hearings of the Civil Service Board

The CSB, which must vote to certify test results, held five hearings between January and March 2004 on the issue of whether to certify the test results, because the results were racially biased, i.e. the test results would produce a negative disparate impact on racial minorities.
  • At the initial hearing on January 22, 2004, New Haven's counsel (and co-defendant) Mr. Thomas Ude characterized the exam results as "a very significant disparate impact..." His comments "emphasize[d] ... that the case law does not require that the City find that the test is indefensible in order to take action that it believes is appropriate to remedy ... disparate impact from examination." He advised that "federal law does not require that you [the CSB] make a finding that this test ... was not job-related, which is another way of saying it wasn't fair. A test can be job-related and have a disparate impact on an ethnic group and still be rejected because there are less discriminatory alternatives for the selection process." Id. at 36.
  • Several firefighters spoke in favor of certifying the results. Plaintiff Frank Ricci stated that the questions on the test were drawn from "nationally recognized" books and New Haven's own Rules and Regulations and Standard Operating Procedures. He stated that he "studied 8 to 13 hours a day to prepare for this test and incurred over $1,000 in funds [sic] to study for this test," including purchasing the books and paying an acquaintance to read them on tape because he is dyslexic and learns better by listening.
  • The CSB heard from an IOS representative, who advised the city to approve the test results, and concluded by "implor[ing] anyone that had ... concerns [about disparate impact] to review the content of the exam. In my professional opinion, it's facially neutral."
  • The board heard from a representative of an IOS competitor, who testified that the results showed "adverse impact" and that he could design tests with less disparate results and better measuring the jobs' requirements. He also conceded that the City's tests did not show an adverse impact greater than that allowed by law.
  • At the final hearing, Defendant Ude, the Corporation Counsel
    Corporation Counsel
    The Corporation Counsel is the title given to the chief legal officer in some municipal and county jurisdictions, who handles civil claims against the city, including negotiating settlements and defending the city when it is sued. Most corporation counsels do not prosecute criminal cases, though...

    , strongly advocated against certifying the exam results. Defendant Walton spoke "on behalf of the Mayor" and also advocated discarding the test results, primarily because the eligibility list, when combined with the Rule of Three and the number of vacancies then available, would "create a situation in which African-Americans are excluded from promotional opportunity on both the Captain and Lieutenant positions and Latinos are excluded from promotional opportunity on the Lieutenant examination." Id. at 30. She questioned whether there were "other ways of making the selection," that would be less "discriminatory." Id. at 31-32.

The board split 2-2 on the question of certifying each exam (with one member recusing herself because her brother was a candidate for promotion on the Captain's examination). As result, the promotional lists were not certified; the city threw out the test and promoted no one, citing a desire to avoid violating Title VII of the Civil Rights Act.

Parties

Ricci and eighteen other white test takers, plus one Hispanic, all of whom would have qualified for consideration for the promotions, sued the city including Mayor John DeStefano, Jr.
John DeStefano, Jr.
John DeStefano, Jr. is the current mayor of New Haven, Connecticut. He was the Democratic candidate in 2006 for Governor of Connecticut, unsuccessfully challenging incumbent Republican Governor M. Jodi Rell. He was also the named defendant in the landmark 2009 U.S. Supreme Court case of Ricci v...

 The lead plaintiff was Frank Ricci, who has been a firefighter at the New Haven station for 11 years. Ricci gave up a second job to have time to study for the test. Because he has dyslexia
Dyslexia
Dyslexia is a very broad term defining a learning disability that impairs a person's fluency or comprehension accuracy in being able to read, and which can manifest itself as a difficulty with phonological awareness, phonological decoding, orthographic coding, auditory short-term memory, or rapid...

, he paid an acquaintance $1,000 to read his textbooks on to audiotapes. Ricci also made flashcards, took practice tests, worked with a study group, and participated in mock interviews. He placed 6th among 77 people who took the lieutenant's test.

Lt. Ben Vargas, the lone Hispanic petitioner, was allegedly attacked by unknown African-American assailants in Humphrey's East Restaurant in 2004 and had to be hospitalized afterwards. He has since stated that he believes the attack was orchestrated by the African-American firefighters in retribution for bringing in the legal case; his account is vigorously disputed by some critics. Vargas quit the Hispanic firefighters' association, which includes Vargas's brother, after the group declined to support his legal case.

In addition to Ricci and Vargas the other firefighters were equally involved and were named plaintiffs: Steven Durand, Greg Boivin, Mark Vendetto, John Vendetto, Kevin Roxbee, James Kottage, Matthew Marcarelli, Edward Riordan, Sean Patten, Brian Jooss, Michael Christoforo, Timothy Scanlon, Ryan DiVito, Christopher Parker, Michael Blatchley, William Gambardella, Thomas Michaels, and Gary Carbone. The press dubbed the group the New Haven 20.

Claims

Among other things, the suit alleged that, by discarding the test results, the City and the named officials discriminated against the plaintiffs based on their race, in violation of both Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., and the Equal Protection Clause
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...

 of the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...

 to the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

. The City and the officials defended their actions, arguing 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 minority firefighters.

District court grants motion for summary judgment

Judge Janet Bond Arterton
Janet Bond Arterton
Janet Bond Arterton is a United States federal judge.Arterton was born in Philadelphia, Pennsylvania. She received a B.A. from Mount Holyoke College in 1966, and then received a J.D. from Northeastern University School of Law in 1977...

 in the federal district court
United States District Court for the District of Connecticut
The United States District Court for the District of Connecticut is the Federal district court whose jurisdiction is the state of Connecticut. The court has offices in Bridgeport, Hartford and New Haven. Appeals from the court are heard by the United States Court of Appeals for the Second Circuit...

 ruled for the city, granting its motion for summary judgment
Summary judgment
In law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case....

.

Second Circuit panel and per curiam opinion

On appeal, a three-judge panel of the Second Circuit Court of Appeals
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...

 (Pooler
Rosemary S. Pooler
Rosemary S. Pooler , is a U.S. federal judge in the United States Court of Appeals for the Second Circuit.-Early life:Rosemary Pooler was born in New York City. She earned a B.A. from Brooklyn College in 1959, an M.A...

, Sack
Robert D. Sack
Robert David Sack is a judge on the United States Court of Appeals for the Second Circuit.-Personal:Sack was raised in Brooklyn, New York. His father was Eugene Sack, who served as rabbi of Congregation Beth Elohim for 35 years. In 1989 he married his second wife, the lawyer Anne K...

 and Sotomayor
Sonia Sotomayor
Sonia Maria Sotomayor is an Associate Justice of the Supreme Court of the United States, serving since August 2009. Sotomayor is the Court's 111th justice, its first Hispanic justice, and its third female justice....

, C.JJ.) heard arguments in this case of discrimination
Discrimination
Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...

. Judge Sotomayor (who was subsequently elevated
Sonia Sotomayor Supreme Court nomination
On May 26, 2009, President Barack Obama announced his selection of Judge Sonia Sotomayor for Associate Justice of the Supreme Court of the United States, to replace retiring Justice David Souter. Sotomayor's nomination was formally submitted to the United States Senate on June 1, 2009, when the...

 to Associate Justice
Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...

 to the U.S. Supreme Court) vigorously questioned the attorneys in the case, and repeatedly discussed whether the city had a right to attempt to reformulate its test if it was afraid that the original test was discriminatory or that it would result in litigation. The three-judge panel then affirmed the district court's ruling in a summary order
Summary order
In law, a summary order is a determination made by a court without issuing a legal opinion. This disposition is also known as a nonopinion, summary disposition, summary opinion, affirmance without opinion, unpublished order, disposition without opinion, or abbreviated disposition...

, without opinion, on February 15, 2008.

However, after a judge of the Second Circuit requested that the court hear the case en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...

, the panel withdrew its summary order and on June 9, 2008 issued instead a unanimous per curiam
Per curiam decision
In law, a per curiam decision is a ruling issued by an appellate court of multiple judges in which the decision rendered is made by the court acting collectively and anonymously...

 opinion. The panel's June 9, 2008 per curiam opinion was eight sentences long. It characterized the trial court's decision as "thorough, thoughtful and well-reasoned" while also lamenting that there were "no good alternatives" in the case. The panel expressed sympathy to the plaintiffs' situation, particularly Ricci's, but ultimately concluded that the Civil Service Board was acting to "fulfill its obligations under Title VII [of the Civil Rights Act]." The panel concluded by adopting the trial court's opinion in its entirety.

En banc hearing denied

Regarding a rehearing en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...

, that was denied on June 12, 2008 by a vote of 7-6. Judge José Cabranes
José A. Cabranes
José Alberto Cabranes , is a judge on the United States Court of Appeals for the Second Circuit. Formerly a practicing lawyer, government official, and law teacher, he was the first Puerto Rican appointed to a federal judgeship in the continental United States .-Background:Cabranes was born in...

 and Chief Judge Dennis Jacobs
Dennis G. Jacobs
Dennis G. Jacobs is Chief Judge of the United States Court of Appeals for the Second Circuit. He became Chief Judge on October 1, 2006....

 wrote opinions in dissent from the denial of rehearing, urging review by the Supreme Court.

Certiorari and oral arguments

The Supreme Court granted certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...

 and heard oral arguments on April 22, 2009.

Opinion of the court

Justice Kennedy, writing for a 5-4 majority (Kennedy, Roberts, Scalia, Thomas, and Alito), concluded that the City's action in discarding the tests was a violation of Title VII:
  1. In these circumstances, the standard for permissible race-based action under Title VII is that the employer must "demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute."
  2. The respondents cannot meet that threshold standard.

History of examination’s design, criteria, and process (Section I-A)

The Supreme Court upheld the fairness and validity of the examinations that Industrial/Organizational Solutions Inc, or I/O Solutions, Inc., referred to as IOS in the case, developed and administered. IOS is an Illinois
Illinois
Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...

 company that specializes in designing entry-level examinations and promotional examinations for fire
Fire
Fire is the rapid oxidation of a material in the chemical process of combustion, releasing heat, light, and various reaction products. Slower oxidative processes like rusting or digestion are not included by this definition....

 and police departments; and other public safety
Public Safety
Public safety involves the prevention of and protection from events that could endanger the safety of the general public from significant danger, injury/harm, or damage, such as crimes or disasters .-See also:* By nation...

 and corporate organizations. The Court cited examples of how the IOS test design
Test design
In software engineering, test design is the act of creating and writing test suites for testing a software.- Definition :Test design could require all or one of:* knowledge of the software, and the business area it operates on,...

, criteria, and methodology
Methodology
Methodology is generally a guideline for solving a problem, with specificcomponents such as phases, tasks, methods, techniques and tools . It can be defined also as follows:...

 included: interviews
Interviews
Interviews is:# the plural form of "interview"# a compilation album by Bob Marley & the Wailers, see Interviews # a C++ toolkit for the X Window System, see InterViews...

, observations, education
Education
Education in its broadest, general sense is the means through which the aims and habits of a group of people lives on from one generation to the next. Generally, it occurs through any experience that has a formative effect on the way one thinks, feels, or acts...

, test format compliance
Compliance
Compliance can mean:*In mechanical science, the inverse of stiffness*Compliance , a patient's adherence to a recommended course of treatment...

, and independent [assessors]]. With that information IOS produced a test that reduced adverse impact
Adverse impact
In US employment law, the doctrine of disparate impact holds that employment practices may be considered discriminatory and illegal if they have a disproportionate "adverse impact" on members of a minority group...

 to the protected class
Protected class
Protected class is a term used in United States anti-discrimination law. The term describes characteristics or factors which can not be targeted for discrimination and harassment...

.

Supreme Court Justice Anthony McLeod Kennedy wrote, “In order to fit the examinations to the New Haven Department, IOS began the test-design process by performing job analyses to identify the tasks, knowledge
Knowledge
Knowledge is a familiarity with someone or something unknown, which can include information, facts, descriptions, or skills acquired through experience or education. It can refer to the theoretical or practical understanding of a subject...

, skills, and abilities that are essential for the lieutenant
Lieutenant
A lieutenant is a junior commissioned officer in many nations' armed forces. Typically, the rank of lieutenant in naval usage, while still a junior officer rank, is senior to the army rank...

 and captain
Fire captain
Captain is a rank in various fire services.In most American and Canadian fire services, a captain ranks above a lieutenant and below a Battalion Chief. This varies, though, between departments – in the Boston Fire Department, the captain is the officer in overall charge of a fire company...

 positions.”

The process that IOS used to design their test for the job analyses portion included interviews of incumbent captains and lieutenants and their supervisors, and ride-along observations of other on-duty officers. Using that information, IOS wrote job-analysis questionnaires and administered them to most of the incumbent
Incumbent
The incumbent, in politics, is the existing holder of a political office. This term is usually used in reference to elections, in which races can often be defined as being between an incumbent and non-incumbent. For example, in the 2004 United States presidential election, George W...

 battalion chiefs, captains
Fire captain
Captain is a rank in various fire services.In most American and Canadian fire services, a captain ranks above a lieutenant and below a Battalion Chief. This varies, though, between departments – in the Boston Fire Department, the captain is the officer in overall charge of a fire company...

, and lieutenants in the Department.


In its majority opinion
Majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision....

, the U.S. Supreme Court praised the I/O Solutions` job analysis process by writing, "At every stage of the job analysis, IOS, by deliberate choice, over-sampled minority firefighters to ensure that the results which IOS would use to develop the examinations—would not intentionally favor white candidates."

Justice Kennedy included in the Opinion the following procedures IOS used to develop the written examinations to measure the candidates' job-related knowledge. “IOS compiled a list of training manuals, Department procedures, and other materials to use as sources for the test questions and received approval from the New Haven fire chief and assistant fire chief. Then, using the approved sources, IOS drafted a 100 question multiple-choice test written below a 10th-grade reading level. The City then opened a 3-month study period in which it gave candidates a list that identified the source material (or references list) for the questions, including the specific chapters from which the questions were taken.”

IOS also developed the oral examinations that concentrated on job skills and abilities. Using the job-analysis information, IOS wrote hypothetical situations to test incident-command skills, firefighting tactics, interpersonal skills
Interpersonal skills
Interpersonal skills are sometimes also referred to as people skills or communication skills. Interpersonal skills involve using skills such as active listening and tone of voice, this include delegation and leadership...

, leadership
Leadership
Leadership has been described as the “process of social influence in which one person can enlist the aid and support of others in the accomplishment of a common task". Other in-depth definitions of leadership have also emerged.-Theories:...

, and management ability, among other things. Candidates were then asked these hypotheticals and had to respond to a panel of three assessors.

The Court agreed that IOS demonstrated due diligence
Due diligence
"Due diligence" is a term used for a number of concepts involving either an investigation of a business or person prior to signing a contract, or an act with a certain standard of care. It can be a legal obligation, but the term will more commonly apply to voluntary investigations...

 by, “assembling a pool of 30 assessors who were superior in rank to the positions being tested. At the City's insistence (because of controversy surrounding previous examinations), all the assessors came from outside Connecticut
Connecticut
Connecticut is a state in the New England region of the northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, and the state of New York to the west and the south .Connecticut is named for the Connecticut River, the major U.S. river that approximately...

. ”IOS submitted the assessors' resumes to City officials for approval. They were battalion chiefs, assistant chiefs, and fire chiefs from departments of similar sizes to New Haven's throughout the country. Sixty-six percent of the panelists were minorities, and each of the nine three-member assessment panels contained two minority members. They received training on how to score the candidates' responses consistently using checklists of desired criteria.

Section II-A reiterated the doctrines underlying a disparate-treatment claim
Disparate treatment
Disparate treatment is one of the theories of discrimination under Title VII of the United States Civil Rights Act; the other theory is disparate impact....

.

The city engaged in disparate treatment discrimination (Section II-B)

First, Kennedy rejected arguments that the City did not discriminate. It engaged in "express, race-based decisionmaking" (i.e., disparate treatment
Disparate treatment
Disparate treatment is one of the theories of discrimination under Title VII of the United States Civil Rights Act; the other theory is disparate impact....

/intentional discrimination) when it declined to certify the examination results because of the statistical disparity based on race — "i.e., how minority candidates had performed when compared to white candidates". The District Court was wrong to argue that respondents' "motivation to avoid making promotions based on a test with a racially disparate impact ... does not, as a matter of law, constitute discriminatory intent." "That argument turns upon the City's objective — avoiding disparate-impact liability — while ignoring the City's conduct in the name of reaching that objective."

Disparate treatment can be justified by strong basis in evidence of disparate impact (Section II-B cont'd)

Second, Kennedy examined the statutory framework of Title VII, to determine whether Title VII's proscription of disparate treatment
Disparate treatment
Disparate treatment is one of the theories of discrimination under Title VII of the United States Civil Rights Act; the other theory is disparate impact....

 is afforded any lawful justifications in the disparate impact provision that it seems to conflict with. Looking to analogous Equal Protection cases, he reached the statutory construction that, in instances of conflict between the disparate-treatment and disparate-impact provisions, permissible justifications for disparate treatment must be grounded in the strong-basis-in-evidence standard
Strong-basis-in-evidence standard
City of Richmond v. J.A. Croson Co. established the basic principle that a governmental actor must provide a strong basis in evidence for its conclusion that remedial action is necessary.The application of this rule has produced conflicting results...

. He concluded that "once [a] process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee's legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed, §2000e–2(j), and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race."
  • He rejected petitioners' "strict approach," that under Title VII, "avoiding unintentional discrimination cannot justify intentional discrimination." That assertion ignores the fact that, by codifying the disparate-impact provision in 1991, Congress has expressly prohibited both types of discrimination, and would render a statutory provision "a dead letter".
  • He rejected petitioners' suggestion that an employer "must be in violation of the disparate-impact provision before it can use compliance as a defense in a disparate-treatment suit." This rule would run counter to what we have recognized as Congress's intent that "voluntary compliance" be "the preferred means of achieving the objectives of Title VII." Forbidding employers to act unless they know, with certainty, that a practice violates the disparate-impact provision would bring compliance efforts to a near standstill. Even in the limited situations when this restricted standard could be met, employers likely would hesitate before taking voluntary action for fear of later being proven wrong in the course of litigation and then held to account for disparate treatment.
  • He rejected the respondents' position that "an employer's good-faith belief that its actions are necessary to comply with Title VII's disparate-impact provision should be enough to justify race-conscious conduct." This position would ignore "the original, foundational prohibition of Title VII," which bars employers from taking adverse action "because of ... race." §2000e–2(a)(1); and when Congress codified the disparate-impact provision in 1991, it made no exception to disparate-treatment liability for actions taken in a good-faith effort to comply with the new, disparate-impact provision in subsection (k). Respondents' policy would encourage race-based action at the slightest hint of disparate impact — e.g. causing employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination — which would amount to a de facto quota system, in which a "focus on statistics ... could put undue pressure on employers to adopt inappropriate prophylactic measures." "That operational principle could not be justified, for Title VII is express in disclaiming any interpretation of its requirements as calling for outright racial balancing." §2000e–2(j). The purpose of Title VII "is to promote hiring on the basis of job qualifications, rather than on the basis of race or color."
  • He cited Justice Powell who, announcing the strong-basis-in-evidence standard for the plurality in Wygant v. Jackson Board of Education
    Wygant v. Jackson Board of Education
    Wygant v. Jackson Board of Education, , was a case before the United States Supreme Court. It is the seminal case for the "strong-basis-in-evidence" standard for affirmative action programs.-Background:...

    , recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other, stating that those "related constitutional duties are not always harmonious," and that "reconciling them requires ... employers to act with extraordinary care." The plurality required a strong basis in evidence because "[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees." The Court applied the same standard in Richmond v. J. A. Croson Co., observing that "an amorphous claim that there has been past discrimination ... cannot justify the use of an unyielding racial quota."
  • The same interests are at work in the interplay between the disparate-treatment and disparate-impact provisions of Title VII: Congress imposes liability on employers for unintentional discrimination, in order to rid the work-place of "practices that are fair in form, but discriminatory in operation." But Congress also prohibits employers from taking adverse employment actions "because of" race. Applying the strong-basis-in-evidence standard
    Strong-basis-in-evidence standard
    City of Richmond v. J.A. Croson Co. established the basic principle that a governmental actor must provide a strong basis in evidence for its conclusion that remedial action is necessary.The application of this rule has produced conflicting results...

     to Title VII gives effect to both provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances.
  • The standard leaves ample room for employers' voluntary compliance efforts, which are essential to the statutory scheme and to Congress's efforts to eradicate workplace discrimination. See Firefighters, supra, at 515.
  • And the standard appropriately constrains employers' discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation.
  • Resolving the statutory conflict in this way allows the disparate-impact prohibition to work in a manner that is consistent with other provisions of Title VII, including the prohibition on adjusting employment-related test scores on the basis of race. See §2000e–2(l). Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefighters here invested substantial time, money, and personal commitment in preparing for the tests. Employment tests can be an important part of a neutral selection system that safeguards against the very racial animosities Title VII was intended to prevent. Here, however, the firefighters saw their efforts invalidated by the City in sole reliance upon race-based statistics. If an employer cannot rescore a test based on the candidates' race, §2000e–2(l), then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates — absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision. Restricting an employer's ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII's express protection of bona fide promotional examinations.

City showed no strong basis in evidence of disparate impact (Section II-C)

Next, Kennedy inquired whether the city's justifications for its disparate-treatment discrimination met this strong basis in evidence standard. He concluded that they did not: "Even if respondents were motivated as a subjective matter by a desire to avoid committing disparate-impact discrimination ... [t]here is no evidence — let alone the required strong basis in evidence — that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear 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 test results produced significant racial adverse impact, and confronted the City with a prima facie case of disparate-impact liability. That compelled them to "take a hard look at the examinations" to determine whether certifying the results would have had an impermissible disparate impact. The problem for respondents is that a prima facie case of disparate-impact liability — essentially, a threshold showing of a 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. That is because the City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City's needs but that the City refused to adopt. §2000e–2(k)(1)(A), (C). Neither condition holds:
  1. He found no genuine dispute that the examinations were job-related and consistent with business necessity. The City's assertions to the contrary are "blatantly contradicted by the record." (Section II-C-1)
  2. He found that respondents also lacked a strong basis in evidence of an equally valid, less-discriminatory testing alternative that the City, by certifying the examination results, would necessarily have refused to adopt. (Section II-C-2.)
Respondents raise three arguments to the contrary, but each argument fails.
  • First, respondents refer to testimony before the CSB that a different composite-score calculation — weighting the written and oral examination scores 30/70 — would have allowed the City to consider two black candidates for then-open lieutenant positions and one black candidate for then-open captain positions. (The City used a 60/40 weighting as required by its contract with the New Haven firefighters' union.) But respondents have produced no evidence to show that the 60/40 weighting was indeed arbitrary. In fact, because that formula was the result of a union-negotiated collective bargaining
    Collective bargaining
    Collective bargaining is a process of negotiations between employers and the representatives of a unit of employees aimed at reaching agreements that regulate working conditions...

     agreement, we presume the parties negotiated that weighting for a rational reason.
  • Second, respondents argue that the City could have adopted a different interpretation of the "rule of three" that would have produced less discriminatory results. Respondents claim that employing "banding" here would have made four black and one Hispanic candidates eligible for then-open lieutenant and captain positions. But banding was not a valid alternative for this reason: Had the City reviewed the exam results and then adopted banding to make the minority test scores appear higher, it would have violated Title VII's prohibition of adjusting test results on the basis of race.
  • Third, and finally, respondents refer to statements by Hornick in his telephone interview with the CSB regarding alternatives to the written examinations. But when the strong-basis-in-evidence standard applies, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) statements in the record. And there is no doubt respondents fall short of the mark by relying entirely on isolated statements by Hornick.

Conclusion (Section II-C-3)

He concluded: The record in this litigation documents a process that, at the outset, had the potential to produce a testing procedure that was true to the promise of Title VII: No individual should face workplace discrimination based on race. Respondents thought about promotion qualifications and relevant experience in neutral ways. They were careful to ensure broad racial participation in the design of the test itself and its administration. As we have discussed at length, the process was open and fair. The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the City's refusal to certify the results. The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the City had established for the promotional process. Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City's reliance on raw racial statistics at the end of the process was all the more severe. Confronted with arguments both for and against certifying the test results — and threats of a law-suit either way — the City was required to make a difficult inquiry. But its hearings produced no strong evidence of a disparate-impact violation, and the City was not entitled to disregard the tests based solely on the racial disparity in the results.

Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

Concurrence

Scalia, though concurring in full, regretted that the Court declined to clarify the conflict between Title VII's disparate-impact provisions and the Constitution's guarantee of equal protection. Specifically: although the Court clarified that the disparate-treatment provisions forbid "remedial" race-based actions when a disparate-impact violation would not otherwise result, "it is clear that Title VII not only permits but affirmatively requires such [remedial race-based] actions" when such a violation would result. In the latter situations, Title VII's disparate-impact provisions "place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes." "That type of racial decision making is, as the Court explains, discriminatory."

Dissent

Ginsburg's opinion stated that the Court holds that New Haven has not demonstrated "a strong basis in evidence" for its plea. In so holding the Court pretends that "[t]he City rejected the test results solely because the higher scoring candidates were white." That pretension, essential to the Court's disposition, ignores substantial evidence of multiple flaws in the tests New Havens used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes.

Aftermath

New Haven reinstated the examination results and promoted 14 of the 20 firefighters within months of the decision. The city settled the lawsuit by paying $2 million to the firefighter plaintiffs; enhancing their pension benefits by millions of dollars; and paying their attorney, Karen Lee Torre
Karen Lee Torre
Karen Lee Torre is an American attorney based in New Haven, Connecticut, most notable for successfully arguing the landmark Supreme Court case of Ricci v...

, $3 million in fees and costs.

See also

  • Boise Kimber
    Boise Kimber
    Boise Kimber is an American Baptist minister of the First Calvary Baptist Church in New Haven, CT. He is also a commissioner of the New Haven Fire Department, the president of the Greater New Haven Clergy Association, and a community activist. He received a wide media attention after being...

  • Griggs v. Duke Power Co.
    Griggs v. Duke Power Co.
    Griggs v. Duke Power Co., , was a court case argued before the United States Supreme Court on December 14, 1970. It concerned employment discrimination and the disparate impact theory and was decided on March 8, 1971...

  • United Steelworkers v. Weber
    United Steelworkers v. Weber
    United Steelworkers of America v. Weber, 443 U.S. 193 , was a case regarding affirmative action in which the United States Supreme Court held that the Civil Rights Act of 1964 did not bar employers from favoring women and minorities...

  • Marino v. Ortiz
    Marino v. Ortiz
    Marino v. Ortiz, was a United States Supreme Court case which resulted from a lawsuit filed by 350 white New York City police officers that pitted the equal protection clause of the Fourteenth Amendment against Title VII of the Civil Rights Act of 1964....

  • Piscataway v. Taxman
    Piscataway v. Taxman
    Piscataway School Board v. Taxman, 91 F.3d 1547 was a racial discrimination case that began in 1989. The school board of Piscataway, New Jersey needed to eliminate a teaching position from a high schools Business Education department. Under New Jersey state law, tenured teachers have to be laid...

  • Hayden v. County of Nassau
    Hayden v. County of Nassau
    In Hayden v. County of Nassau, 180 F.3d 42 , the Second Circuit affirmed the district court's dismissal of a suit brought by White and Latino police officers alleging violations of the Equal Protection Clause and Title VII.-Background:...

    (2d Cir. 1999)
  • Bushey v. N.Y. State Civil Serv. Comm'n
    Bushey v. N.Y. State Civil Serv. Comm'n
    Bushey v. New York State Civil Serv. Comm'n, 733 F.2d 220, 224 , was an opinion in the Second Circuit. It applied the "Weber test" in the Supreme Court case of Steelworkers v. Weber.-Background:...

    (2nd Cir. 1984)
  • Kirkland v. New York State Department of Correctional Services
    Kirkland v. New York State Department of Correctional Services
    In Kirkland v. New York State Department of Correctional Services, 711 F.2d 1117 , the Second Circuit affirmed the district court's approval of a settlement that determined promotional order based partly on exam results and partly on race-normed adjustments to the exam, after minority employees...

    (2nd Cir. 1983)
  • Washington v. Davis
    Washington v. Davis
    Washington v. Davis, , was a United States Supreme Court case regarding the application of the Due Process Clause. Two African Americans had applied for positions in the Washington, DC police department, and sued after being turned down...

  • Wygant v. Jackson Bd. of Ed.
  • Watson v. Fort Worth Bank & Trust
    Watson v. Fort Worth Bank & Trust
    Watson v. Fort Worth Bank & Trust was a case before the United States Supreme Court.-Background:A black bank teller was four times rejected in favor of white applicants for promotions to supervisory positions at the bank...

  • City of Richmond v. J.A. Croson Co.
    City of Richmond v. J.A. Croson Co.
    City of Richmond v. J.A. Croson Co., 488 U.S. 469 was a case in which the United States Supreme Court held that the city of Richmond's minority set-aside program, which gave preference to minority business enterprises in the awarding of municipal contracts, was unconstitutional under the Equal...

  • List of United States Supreme Court cases, volume 557
  • List of United States Supreme Court cases

External links

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