News + Events
U.S. Supreme Court Tries To Balance Title VII’s Equal Employment Opportunity Requirements With Its Non-Discrimination Obligations
June 30, 2009
Seth T. Ford
Evan H. Pontz
Christina H. Bost Seaton
Yesterday, June 29, 2009, in Ricci v. DeStefano, et al., the U.S. Supreme Court ruled 5-4 that the City of New Haven, Connecticut violated Title VII of the Civil Rights Act of 1964 by throwing out the results of a promotion test because no African-American candidates would have been promoted based on the test results. This decision will hopefully give guidance to employers on how to handle employment decisions when they are worried about making a non-discriminatory decision based on purportedly objective criteria that seems to run counter to promoting and ensuring equal opportunity in employment.
In 2003, as part of its merit-based system for the promotion of individuals in the Fire Department, the City of New Haven held a test to determine which firefighters were best suited for promotion to vacant lieutenant and captain positions. Based on the results and the requirements for promotion, no African-American candidates would have been promoted. Out of concern for the racial disparity that would have occurred if the City were to certify the test results and make the called-for promotions, the City threw out the results of the test.
In response, White and Hispanic firefighters who passed the tests and were denied a chance at promotion by the City’s refusal to certify the results filed a lawsuit. These firefighters alleged that the City’s refusal to certify the test results discriminated against them based on their race in violation of Title VII. The City responded that had it certified the test results, it could have faced a lawsuit for adopting a practice (the test) which might have been shown to have a discriminatory “disparate impact” on African-American firefighters. The federal trial court rejected the suing firefighter’s claims, and the Second Circuit Court of Appeals affirmed. (Notably, Judge Sonia Sotomayor, President Obama’s nominee for the Supreme Court, was one of the three judges who issued that decision affirming the dismissal of the case.)
The Supreme Court’s decision noted that Title VII prohibits both disparate treatment – intentional discrimination – and policies or practices that produce a disparate impact – unintentional discrimination. The Court found that the City’s refusal to certify the test results because the highest scoring candidates were white was express, race-based decision-making that was prohibited by Title VII. Actions (such as that) that are based on race, are proper only where there is a “strong basis in evidence” that such remedial actions are necessary to remedy discrimination. No such “strong basis in evidence” was found in this case. While the City was concerned about disparate-impact liability if it certified the test and thereby no African-American candidates were promoted, the Court found that this initial showing of a significant statistical disparity was far from the strong basis in evidence that the City would have to show in order to be justified in making its own express, race-based decision. This was particularly the case because the City only faced potential Title VII disparate impact liability if the test was either (i) not job related or consistent with business necessity, or (ii) if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. The record showed no evidence of real risk of Title VII disparate impact liability based upon either ground. So, while the Court acknowledged (at oral argument) the potentially “damned if you do, damned if you don’t” situation, the Court ultimately found that the City’s fear of litigation did not justify its own express, race-based decision to throw out the test results.
This Ricci decision clarifies that employers cannot permit their own fear of litigation (especially when it is not based on very specific facts or evidence) to drive employment decisions which themselves constitute express, race-based decision-making. The Ricci decision stresses that the workplace “must be an environment free of discrimination, where race is not a barrier to opportunity.” Of course, employers continue to have the right to consider how to design their policies and procedures—such as promotion tests—prior to the administration of those procedures, so that the policies and procedures developed will provide a fair opportunity for all individuals. But fear of one type of legal liability for discrimination does not necessarily justify taking an action that directly considers race as a factor for the action.
If you would like to read a copy of the Supreme Court’s decision in Ricci v. DeStefano, et al., a copy is available at the following website: http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf.
If you have questions about this decision or what it means for you and your Company, please contact Seth Ford, Evan Pontz, Christina H. Bost Seaton or any member of the Troutman Sanders Labor & Employment Law Practice Group.