MS&K Alerts and Legal Updates

Ricci v. DeStefano: Court Reignites Firefighters' Claims

Title VII of the U.S. Civil Rights Act proscribes both "disparate treatment" and "disparate impact" discrimination. "Disparate treatment" discrimination occurs when an employer consciously treats applicants or employees differently because of race, gender, or any other protected characteristic. There are only very narrowly defined defenses to such intentional discrimination. "Disparate impact" discrimination, on the other hand, occurs when an employer's facially neutral conduct disproportionately adversely affects one group (such as African-Americans) more than another group (such as Caucasians). Because such conduct is not intentional, it is not unlawful if the employer can establish "business necessity" for its actions and no less discriminatory alternative exists. Although many neutral criteria (such as height, lifting, and educational requirements) may result in disparate impact, most of the litigation in this area has involved written tests. Thus, in order to establish that utilizing a written test for hiring or promotion is justified by "business necessity," an employer must go to great lengths to ensure that the test has been properly validated to assess necessary job skills or to predict success in the job. In Ricci v. DeStefano, the Supreme Court was called upon to address the conflict that sometimes arises when an employer makes an intentional race-based decision in order to avoid disparate impact.

At issue in DeStefano was an exam used by the City of New Haven, Connecticut, to make promotion decisions in the City's fire department. Based on the facts as recited by the Supreme Court's majority, the City appeared to have done everything right, ensuring that the test was properly developed, validated, and fairly administered. Similarly, the named plaintiffs in the case, Frank Ricci and Benjamin Vargas, also appeared to have done everything right. Ricci bought the available study materials and, because of a learning disability, even paid a neighbor to tape record them. For three months, he studied eight to thirteen hours a day and listened to the tapes while driving. Similarly, Vargas gave up another part-time job and his wife took leave from her own job to care for their three young children so that Vargas could devote himself to studying. Both Ricci and Vargas did well on the exams and therefore qualified for promotion, as did others.

However, after the test was administered, a political furor erupted because the test resulted in a significantly higher passage rate for whites than for Hispanics and Blacks. The Mayor came out against certifying the results of the test, and the City's General Counsel opined that the results could subject the City to a disparate impact lawsuit. The City's Civil Service Board deadlocked at a vote of 2-2, effectively nullifying the examinations. So Ricci, Vargas, and other high-scoring firefighters brought suit, alleging that the City engaged in unlawful disparate treatment discrimination by disregarding the results on racial grounds. The District Court disagreed, granting summary judgment to the City, holding that the motive to avoid a racially disparate impact does not constitute discriminatory intent as a matter of law. A Second Circuit Court of Appeals panel (including Supreme Court nominee Sonia Sotomayor) summarily affirmed the District Court in a one-paragraph opinion.

The U.S. Supreme Court, siding with the firefighters, reversed. Writing for a 5-4 majority, Justice Anthony Kennedy held that making a race-based employment decision (such as nullifying a test) in order to avoid adverse impact is only justified when an employer can demonstrate a "strong basis in evidence" that disparate impact liability would otherwise result. "All the evidence," Kennedy noted, "demonstrates that the City chose not 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." However, said the Court, there was not a "strong basis in evidence" of liability because the exam was "job-related and consistent with business necessity," and the City had no "equally valid, less-discriminatory alternative." As the majority summarized: "Whatever the City's ultimate aim - however well intentioned or benevolent it might have seemed - the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white."

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