Ricci v. DeStefano (2009)
Tuesday, September 8, 2009 at 2:15PM Read the decision, here.
Issue. How do the Courts resolve the tension in a Title VII claim (Civil Rights Law) when an employer engages in disparate treatment in order to avoid a possible disparate impact action.
Background. The fire department of the city of New Haven, Connecticut had openings for lieutenant and captain. In order to fill those positions, the fire department brought in an outside consultant to create a test to be administered to possible candidates. The testing agency reviewed policies, consulted with numerous captains and lieutenants and rode along with the fire department in order to create questions. Further, the possible candidates were told from where the questions were coming.
After the tests were administered, the scores for white candidates were higher than those of minority officers. As a result, if the tests were certified, too many whites and not enough minorities would receive a promotion. The City was presented with a quandary. If the results were certified, minority candidates would sue and would claim the City violated Title VII because of the disparate-impact of the test results. On the other hand, if the results were not certified, passing candidates would sue and would claim the City violated Title VII by tossing out the test because of race (disparate treatment).
The City decided to toss the test results. As expected, passing candidates sued and claimed the City's action violated Title VII and the Equal Protection Clause. The District Court sided with the City and the Court of Appeals upheld that decision in a paragraph long opinion. The Supreme Court granted cert and overruled the Court of Appeals. Since the Supreme Court based its decision on Title VII, it did not address the Equal Protection claim.
Court's Analysis. The Supreme Court's analysis is easy to understand once you learn the distinction between disparate-treatment and disparate-impact. Disparate-treatment is when the State bases its decision or action on race (or certain other grounds - gender, religion, national origin, et al). Disparate-impact is when the State's decision or action is not based on race (or certain other grounds) but the consequences of its actions has a disparate impact on a particular issue.
In this case, the City's decision to toss out the test results was based on race - the fact that hiring based on the test results would lead to the promotion of "too many whites". This is disparate-treatment. On the other hand, hiring based on the test results would have a disparate impact on the hiring of minorities. So, the Supreme Court is left with the question as to when is intentional discrimination okay to prevent unintentional and indirect discrimination.
The Supreme Court examined the case law and recognized that government action to remedy past racial discrimination that intentionally discriminates is okay if there is a "strong basis in evidence" that the remedial actions are necessary. The Supreme Court found that the City cold not satisfy this "strong basis in evidence" standard.
Even though the City could face a disparate impact suit if the test was certified, there was little evidence to demonstrate that it would lose such a case. The test was job related and was consistent with business necessity, and there was no equally valid and less discriminatory alternative that would serve the City's needs but the City refused to adopt. Since a disparate-impact case would likely fail, a threat of such a suit could not serve as a basis for intentional discrimination.
My Analysis. Some had hoped the Supreme Court would go all the way and end all forms of reverse discrimination, but the Court did do its traditional role of solving issues as narrowly as possible. There is nothing wrong with remedying past discrimination but just because whites perform better than minorities, one cannot naturally assume it is the result of past discrimination. It is only one test, the results could have been an anomaly.
Let's just look at the test - if the test is neutral, and fair, as this test was, then the city has no reason to toss out the results, even if there is a disparate-impact. On the other hand, if you could demonstrate an inherent unfairness or flaw in the test that would lead to disparate results, then tossing the test results would be proper. Or, if the test is not important for the position being sought. This just happened not to be one of those tests or cases.